EX-10.1 2 exhibit101-dbxsheratongran.htm EX-10.1 文件

貸款協議
日期截至2024年12月6日
之間

TIM/J Street Hotel Sacramento Owner，LLC
TIM/J Street Hotel Sacramento ML，LLC
TIM/J Street Garage Sacramento Owner，LLC
每家都是特拉華州有限責任公司
作爲借款人，共同和個別地，
德國銀行股份公司紐約分行,
作爲代理人，
和
德國銀行股份公司紐約分行, 以及可能不時成爲當事人的任何其他貸款機構,
作爲貸款人




49289660

頁面
2
49289660

V
49289660v20

V
49289660v20

V
49289660v20

V
49289660v20


V
49289660v20

展品
附表A-1 酒店物業
附件A-2 車庫物業
附件B 二級市場交易信息
附件C 保留
附件D 日期向下背書形式
附件E 一致決定清單
附件F 所需的收件箱決定列表

時間表
附表一 借款人組織結構圖
附表二 特殊目的破產遠程實體的定義
附表三 故意留白
附表四 批准的年度預算
附表五 可評級股票
附表六 地租登記冊
附表VII 批准的零階段改造預算
附表八 批准的零階段改造時間表
附表九 零階段改造計劃和規範
附表X PIP預算
附表Xi PIP計劃和規範


8
49289660

貸款協議
該貸款協議日期爲2024年12月6日，雙方 TIM/J Street Hotel Sacramento Owner，LLC, 一家特拉華州有限責任公司 (“酒店費借款人”), TIM/J Street Hotel Sacramento ML，LLC，特拉華州有限責任公司（“運營借款人”），而且 TIM/J Street Garage Sacramento Owner，LLC, 一家特拉華州有限責任公司 (“車庫費借款人「，與酒店費借款人和運營費借款人共同並分別，」借款人「而每個，一個」借款人”），辦事處位於Cim Group，LLC c/o，4700 Wilshire Boulevard，Los Angeles，CA 90010， 德意志銀行紐約分行 (“德意志銀行)，地址爲紐約哥倫布環島1號，郵編：10019(連同其在此項下的繼承人和受讓人，以及可能不時存在的其他共同貸款人，連同他們的每一位繼承人和受讓人，各一名出借人總體而言，出借人“)，以及德意志銀行紐約分行，作爲行政代理人(包括其任何繼承人和受讓人，座席“)，地址爲紐約哥倫布環路1號，紐約郵編：10019，地址爲本人及本合同的其他借款人。
S S鄂爾多斯：
鑑於，酒店費用借款人是通常被稱爲喜來登大酒店的某些房地產的費用所有者，該房地產位於加利福尼亞州薩克拉門託J街1230J Street，郵編33132，由一家503鑰匙的全方位服務酒店組成，對該房地產進行了更詳細的描述附於本文件(“酒店物業”);
鑑於，酒店費用借款人和經營承租人借款人是該特定租賃協議的當事人，該租賃協議日期爲2008年5月2日，即酒店費用借款人作爲出租人的前身作爲出租人，與經營承租人的前身作爲承租人之間的特定租賃協議，經日期爲2013年11月1日的特定第一修正案修訂的租賃協議、日期爲2017年1月1日的特定第二修正案租賃協議、日期爲2018年1月1日的特定第三修正案租賃協議、日期爲2020年1月1日的特定第四修正案租賃協議以及日期爲1月1日的租賃協議特定第五修正案，2021年，並根據截至本協議日期的租賃轉讓和假設轉讓給酒店費用借款人，以及根據截至本協議日期的租賃轉讓和假設轉讓給經營承租人借款人(根據本協議的條款不時修訂、重述或以其他方式修改)，經營租賃”).
鑑於，車庫費用借款人是位於加利福尼亞州薩克拉門託J街1221J街，郵編33132的某個5層停車場的費用所有者，對其不動產進行了更詳細的描述附件A-2“指由借款人、代理人和作爲該協議標的的抵押品帳戶所在的銀行簽署和交付的結算帳戶協議、現金管理協議和彼此的帳戶控制協議(以代理人合理接受的形式)。開戶銀行“指(I)Comerica銀行、德克薩斯州銀行協會或(Ii)任何合格機構。帳戶抵押品”);
“是否具有在第4.2(A)條致謝
1
49289660

“指交易對手對交易對手作出的利率保護抵押品轉讓(如果有)的同意，或在任何替代利率保護協議或替代利率保護協議的情況下，以代理人合理滿意的形式對交易對手進行的利率保護抵押品轉讓的確認或同意。
艾達
是指1990年7月26日頒佈的《美國殘疾人法案》。國標101-336,104號第327條，《美國法典》第42編，12101節及以後，經不時修正。
額外利息
1.“指(A)根據下列規定須付給代理人或任何貸款人的所有款項第2.10節和:
“本協議及(B)支付根據利率保障協議支付給代理人或任何貸款人的所有款項。先行條件
““應具有#中規定的含義第2.20節在此。.
“預付款“應統稱爲貸款人在截止日期後根據下列條件提供的貸款收益的初始預付款和任何額外預付款
“第2.20節其中應包括零點期改造預付款和PIP預付款，以及
“預付款“應指初始預付款、任何零期改造預付款和任何PIP預付款中的任何一項。預付存款.
““應指所有按金、預付款和與未來使用客房、宴會廳、會議室和其他設施有關的承諾、預訂和協議的類似項目，構成酒店財產的一部分。附屬公司
““指，就任何人而言，指任何其他人：(A)直接或間接通過一個或多箇中間人控制該人、由該人控制或與其共同控制的機構；或
“(B)直接或間接實益擁有或持有該人百分之二十(20%)或以上有投票權證券或其他投票權的公司；或(C)持有該人實益擁有或持有的超過百分之二十(20%)的有投票權證券或其他投票權；或(D)屬該人的家庭成員(按《守則》第267(C)(4)條界定)的人，或屬信託或產業，而其實益擁有人是該人的家庭成員(按《守則》第267(C)(4)條界定)的人；或, 2.11, 2.13(E)是該人的高級人員或董事的人。2.14就這一定義而言，「控制」一詞(及其相關含義)是指直接或間接擁有通過股票或其他所有權權益的所有權、合同或其他方式直接或間接指導或導致某人的管理和政策的權力，即使持有所有權權益的其他各方可能對該實體的組成文件中規定的某些重大決策擁有同意權。
“座席“具有本協定第一款規定的含義。代理律師“是指作爲代理人的律師可以不時代表自己和貸款人蔘與。
2
49289660

“代理律師費“是指代理人律師在此之前或以後代表代理人和/或貸款人代表其本人和/或貸款人提供的與貸款有關的服務的合理費用和實際發生的支出(與任何法定假定相反)，包括貸款文件的準備、談判、管理和修改，以及執行代理人和貸款人在貸款文件下的權利和補救措施，包括與訴訟、調解、仲裁和其他替代辦法有關的任何和所有費用和開支爭議程序、行政程序和破產程序，以及對上述任何一項的任何上訴。協議“指本貸款協議，因爲本協議可能會不時修改和生效。改建
““指任何拆卸、改建、安裝、改善或擴建，或對其或其任何部分的改善。更改閾值
““指2,000,000元。替代指數率
“指就每一利息期而言，基準更替的年利率，以該利息期的利息厘定日期爲準；
前提是，
，在任何情況下，替代指數利率都不會低於指數下限。
交替率
“指就每個利息期而言，年利率等於(I)(A)替代指數利率加(B)利差之和與(A)指數下限加(B)利差之和中較大者。
替代利率貸款
““指貸款的利息以基準重置利率爲基礎的年利率計算。年度預算
““指本財政年度的經營預算，包括抵押財產的所有計劃資本支出，由借款人編制，並須經代理人批准，其範圍爲第5.1(F)條
“，可根據本條例的規定予以修正。第2.2.1(C)條
3
49289660

這裏，術語SOFR參考利率，以及(Ii)如果基準轉換事件及其相關的基準替換日期相對於術語SOFR參考利率或當時的基準發生，則適用的基準替換。
“基準替換“應指，在任何利息期內，以下訂單中所列的第一種選擇，可由代理人自貸款轉換爲替代利率貸款之日起根據下列條件確定
“第2.2(C)條以下是：
“在符合本定義末尾的但書的情況下，(1)SOFR平均值和(2)相關基準重置調整數之和；提供
“那、SOFR Average和相關的基準更換調整顯示在屏幕或其他信息服務上，該屏幕或其他信息服務會不時發佈代理商以其唯一但善意的酌情權選擇的費率；或(I)代理人根據其唯一但真誠的酌情權(與此有關，代理人可考慮相關政府機構的建議)確定的浮動利率指數的總和，即代理人在其銀團浮動利率商業房地產貸款中普遍使用或將被代理人預期的，作爲代理人以其唯一但真誠的酌情權確定的當前基準的替代方案，以及(Ii)相關的基準重置調整；提供
“那中規定的指數利率
“(A)條代理人在其銀團浮動利率商業房地產貸款中通常不使用上述貸款作爲替代當時基準的標的貸款，如代理人以其唯一但善意的酌情權確定的，則基準替換應根據
“條例草案(B)條上面。儘管有上述規定或本文中的任何相反規定，基準替換在任何情況下都不應低於指數下限。基準替換調整
“現金清掃週期“指下列任何一項：
“(I)在自任何違約事件發生之日起至代理人以書面形式接受該違約事件補救之時止的期間內(有一項理解，代理人無義務接受任何借款人對任何違約事件之補救)，且只要當時並無其他現金清算期存在且仍在繼續；及/或(2)自結束日起至所有零期改造項目最終完工之日止的一段時間內，PIP項目一期和PIP項目二期已發生，當時沒有其他導致現金清算期的事件存在和繼續；和/或(3)恢復從低債務收益率期間觸發開始到低債務收益率期間結束的時間段；和/或(Iv)自《酒店管理協議》未完全生效之日起至酒店管理協議全面生效之日止的期間。
“儘管有上述規定，借款人仍有權終止根據下列規定繼續的現金清算期第(Iii)條
“或第(Iv)條
4
49289660

在此，按照以下規定預付部分本金
“第2.4條因此，數額將導致低債務收益率期間的治療發生。
“傷亡情況“指抵押財產或其任何部分的任何損害或毀滅。
“傷亡賠償金支付門檻“是否具有在第5.12(B)條.
“中央銀行承諾“是否具有在
“可比較的停車結構指位於加利福尼亞州薩克拉門託市的物業，在一般位置、價格、大小、設施、便利設施、質量和性質上與Garage物業相當。竣工保修合規變更指關於術語SOFR的使用或管理，或任何替代指數利率的使用、管理、採用或實施，代理人不時決定的任何技術、管理或操作上的變化(包括但不限於對「營業日」、「利率決定日期」、「利息期」、「付款日期」和「美國政府證券營業日」的定義、前後營業日慣例、金額的舍入、確定利率和支付利息的時間和頻率、回顧期間的適用性和長度以及其他技術、管理或業務事項的變更)。或允許代理人以與美元計價的浮動利率資產負債表貸款的市場慣例基本一致的方式使用和管理該利率(或者，如果代理人確定採用該市場慣例的任何部分在管理上不可行，或者如果代理人或其指定人認定不存在使用和管理該利率的市場慣例，則以代理人確定合理必要的其他方式)。
5
49289660

建築顧問
““應統稱爲世邦魏理仕，和/或代理人指定並聘用的其他人(可能是代理人和/或服務商的附屬人員)，在項目的翻新和/或施工進行時檢查改善和物業，並與代理人協商，向代理人提供建議和提交報告。施工合同應指借款人或總承包商簽訂的任何協議、合同、分包合同或採購訂單同意爲零期改造項目和/或PIP項目的建設、翻新或開發提供勞務、設備、服務和/或材料。施工進度計劃
“包商“指任何承包商、分包商或其他提供與批准的翻新/PIP費用相關的服務、勞動力或材料的人員。
“控制受控於
““及其相關含義是指，對任何人而言，直接或間接擁有通過股票所有權、合同或其他方式直接或間接指導或導致指導該人的管理層和政策的權力，即使持有所有權權益的其他各方可能對該實體的組成文件中規定的某些重大決定擁有同意權。控制方
“受控附屬公司
““對任何人而言，是指受該人直接和/或間接控制、直接和/或間接控制或與其共同直接和/或間接控制的任何其他人。轉換利率保護協議
6
49289660

““具有第2.9.3(H)(I)節規定的含義。節省成本
““應指在(A)完成至少90%的與該項目有關的工作後，(B)至少90%的承包商已全額支付(以留置費爲準)，以及(B)至少90%的承包商已全額支付與將由該項目資助的適用項目的組成部分相關的工作和所提供的材料後，在項目預算的任何項目中剩餘的金額，以及(C)如果代理人提出要求，以代理人合理滿意的形式和實質，並以可記錄的形式向代理人交付此類承包商的留置權豁免。證明這些承包商已就所完成的工作和與將由該項目資助的適用項目的組成部分所提供的材料全額支付(但須支付保留費)。交易對手“就任何利率保護協議、替代利率保護協議或替代利率保護協議而言，是指這些協議項下的任何合格交易對手。.
“對手方意見“應具有#中規定的含義第2.9.3(G)節.
“在此。信用卡協議“應具有#中規定的含義.
“第4.1(A)條在此。
“信用方“指根據本協議的條款成爲借款人部分或全部債務的擔保人的每一借款人、每一擔保人和每一其他人。
“DBTCA“指德意志銀行美國信託公司，一家紐約公司。“具有本協定第一款規定的含義。美元
“「或者那個牌子」“是指美利堅合衆國合法貨幣中的美元。繪製請求“是否具有在
7
49289660

(a)第2.20節歐洲經濟區金融機構, “是否具有在第10.26(B)條
(b)歐洲經濟區成員國
“是否具有在, EEA解決方案權威“的含義是第10.26(B)條符合條件的帳戶“指與控股機構持有的所有其他資金分開的可識別帳戶，該帳戶是：(A)(1)在符合合格機構定義的聯邦或州特許託管機構或信託公司開立的一個或多個帳戶，或(2)聯邦或州特許託管機構或信託公司以受託身份在公司信託部門開立的一個或多個單獨的信託帳戶，就州特許託管機構或信託公司而言，該帳戶受實質上類似於12 C.F.R.第9.10(B)節的規定，在(A)(I)或(A)(Ii)的情況下，擁有至少50,000,000美元的綜合資本和盈餘，並受聯邦或州當局的監督或審查，或(B)由DBTCA維持的帳戶。符合資格的帳戶將不會有存單、存摺或其他票據作爲證明。
資格要求
““就任何人而言，指該人(A)的總資產(名義上或管理下，包括未催繳或可收回的資本承諾)超過650,000,000.00元，(退休金顧問公司或類似的受託人除外)資本/法定盈餘或股東權益或淨資產(包括但不限於未催繳或可收回的資本承諾)150,000,000.00元，及(B)經常從事作出或擁有商業房地產按揭及/或夾層貸款、債券、證券或其他債務工具的業務。符合條件的受讓人“指(I)德意志銀行或其任何或任何聯屬機構或備用分行，或(Ii)下列一項或多項非受限制貸款人/受讓人：
(a)B.投資者是1933年《證券法》(經修訂)下第144A條規則所指的投資公司、資金管理公司或「合格機構買家」，或1933年《證券法》(經修訂)下的條例D所指的機構「認可投資者」，只要第(B)款所指的任何此等人士符合資格要求；
(b)C.它是一家與上文(A)或(B)款所述任何實體基本相似、滿足資格要求的機構；
“D.指滿足資格要求並由上述(A)、(B)或(C)款所述的任何實體控制的任何實體；或E.是指根據本定義第(A)、(B)、(C)或(D)條成爲合格受讓人的實體，作爲符合資格要求的實體的普通合夥人、管理成員或基金管理人。
符合條件的機構「指(I)國家銀行協會富國銀行，(Ii)國家銀行協會PNC銀行，(Iii)DBTCA或(Iv)由聯邦存款保險公司承保的短期無擔保債務或商業票據被S評級至少爲」A-1“的存款機構或信託公司，對於資金持有時間不超過三十(30)天的帳戶，穆迪的評級爲P-1，惠譽的評級爲F-1(惠譽對此類託管機構的長期無擔保債務評級至少爲A)，或者對於資金持有天數超過三十(30)天的帳戶，其長期無擔保債務評級至少(I)被S評爲A級。(Ii)被惠譽評爲「A」級(而該存款機構的短期存款或短期無抵押債務或商業票據被惠譽評爲不低於「F1」級)；及。(Iii)被穆迪評爲「A2」級。被禁運人員(2)“應具有下列定義：
8
49289660

第5.34(C)條在此。搶修“指爲補救對抵押財產、人類健康或安全構成迫在眉睫的威脅的情況而要求在緊急情況下(即沒有足夠的時間遵守本協定的適用規定)在抵押財產上進行的任何工作。, “是指借款人和擔保人以代理人爲受益人，於本合同日期作出的某些環境賠償。股權“指公司的股本、有限責任公司的成員權益、合夥企業的合夥權益、合營企業的合營企業權益、信託或商業信託下受益人的權益，以及任何法律實體或信託的所有其他所有權證據或文書，連同(1)從上述公司、有限責任公司、合夥企業、合資企業、信託、商業信託或其他法人實體收取分派或付款的任何權利，以及上述人士產生的所有其他任何性質的經濟權利和權益；(2)有關該等公司、有限責任公司、合營公司、信託、商業信託或其他法人的任何管理和投票權；合夥企業、合營企業、信託、商業信託或其他法人實體；及(Iii)公司、有限責任公司、合夥企業、信託、商業信託或其他法人實體的股本、成員權益、合夥企業權益、合資企業權益或實益權益的所有權所產生或產生的任何性質的所有其他權利及利益。
ERISA“指經修訂的1974年《僱員退休收入保障法》及其頒佈的規則和條例。ERISA關聯方
“指與任何借款人屬同一受控集團公司(按守則第414(B)節的涵義)的任何法團，或與任何借款人處於共同控制(按守則第414(C)、(M)或(O)節的涵義)的任何貿易或業務。“是否具有在
“第10.26(B)條違約事件
“是否具有在第7.1節 不含稅“指對受款人或對受款人徵收的下列稅項中的任何一種，或被要求從向受款人的付款中扣繳或扣除的任何稅項，(A)對淨收入(不論面值如何)、特許經營稅和分行利得稅徵收的稅款，在每一種情況下，(I)由於受款人根據法律組織，或其主要辦事處或(就貸款人而言，其適用的放貸辦事處)位於徵收此類稅項(或其任何政治分區)的管轄區內而徵收的稅款，或(Ii)其他關聯稅，(B)就貸款人而言，根據(I)貸款人獲得貸款或承諾中的該權益或(Ii)貸款人變更其貸款辦事處之日生效的法律，對應付給貸款人或貸款人帳戶的金額徵收的美國聯邦預扣稅，除非在每種情況下，
第2.11節應向貸款人的轉讓人或在緊接貸款人變更其貸款辦事處之前向貸款人支付的稅款；(C)因收款人不遵守規定而應繳的稅款, 第2.11(F)條以及(D)根據FATCA徵收的任何美國聯邦預扣稅。
13244號行政命令
9
49289660

“應具有#中規定的含義第5.34(B)條在此。
現有酒店管理協議最終到期日”).
““具有 第2.17（a）節。首次延期到期日“具有中規定的含義
“第2.17（a）節 這裏。
“第一個延期期限“具有中規定的含義
“第2.17（a）節 這裏。
“財年“是指任期內每年從1月1日開始至12月31日結束的每十二（12）個月期間。
“惠譽“指惠譽公司
“不可抗力“應具有2025年酒店管理協議項下「非常事件」一詞賦予的含義; 提供.
“ 就本協議而言，任何不可抗力期限僅在酒店經理也承認此類事件爲「非常事件」的情況下才能延長，並且僅在酒店經理批准的適用延期的情況下才能延長，但在任何情況下，對於所有不可抗力事件，不得超過一百八十（180）天。 外國貸款人
““應指(A)如果任何借款人是美國人，則指非美國人的貸款人，以及(B)如果任何借款人不是美國人，則是指居住在或根據法律組織的貸款人，而不是該借款人居住的司法管轄區(出於稅務目的)。未來股權出資
““應指借款人作爲借款人在批准的翻新/PIP費用中的份額提供資金的剩餘總額，這些資金將在該批准的翻新/PIP費用中的貸款人份額之前或與貸款人份額的資金一起提供。未來的融資貸款人
10
49289660

““具有在中指定的含義第9.13節
“在此。未來的籌資義務
““具有在中指定的含義第9.13節
“在此。公認會計原則
““指經美國註冊會計師協會或財務會計準則委員會或該委員會的有關委員會認可，並在所有期間一致適用，以正確反映個人財務狀況的公認會計原則和實務，但任何會計原則或實務規定或車庫費用借款人.
““應具有本協定第一款規定的含義。車庫經理
““應指CIM管理公司，加利福尼亞州的一家公司。車庫管理協議
11
49289660

應指車庫經理與加州有限責任合夥企業CIM/J Street Garage Sacramento，L.P.於2019年8月26日簽署的某些修訂和重新簽署的物業管理和服務協議(
““應指現有的《酒店管理協議》、《2025年酒店管理協議》或《替代酒店管理協議》(視情況而定)。酒店經理
酒店經理FF&E預訂
“應具有下列定義：
第4.9(A)條
在此。酒店直通收入指(I)酒店稅，(Ii)借款人或酒店經理或其員工代表爲酒店客人提供服務的個人支付的服務費、小費和小費，以及(Iii)直通費(如交通服務、快遞服務等)。直接支付給第三方服務提供商，而第三方服務提供商不是借款人、酒店經理或擔保人的附屬公司。酒店物業“應具有本協議的獨奏曲中所指明的含義。酒店收入“指酒店從出租房間、套房、會議廳和宴會廳、食品和飲料設施、健身俱樂部、水療中心或其他便利設施、電話服務、洗衣、自動售貨、電視和停車場以及所有其他租金等價物、作爲損害賠償或作爲租金或租金等價物的應付款項、特許權使用費(包括但不限於所有石油和天然氣或其他礦產特許權使用費和獎金)、收入、應收賬款、收入、按金(包括但不限於保安、水電費和其他按金)、帳目、現金、問題、利潤、服務收費中獲得的收入，以及酒店費用借款人、經營承租人借款人或其任何代理人或僱員從任何來源收到或支付給酒店費用借款人或爲其帳戶或其利益支付的任何形式或性質的其他代價，包括但不限於(I)酒店財產產生或歸因於酒店財產的所有該等款項(包括但不限於所有酒店直通收入)；(Ii)根據任何利率保障協議的條款應付予酒店費用借款人及/或經營承租人借款人的任何款項；。(Iii)業務中斷或其他收入保險(但不包括其他類型的保險)的任何收益(如有)及(Iv)上述任何及所有收益。
“酒店從屬協議應指酒店經理、酒店費用借款人、經營承租人借款人和代理人之間的某些從屬、互不干擾和委託協議，該協議可能會被修改。
“酒店稅應指由酒店費用借款人、經營承租人借款人或酒店經理或任何其他直接從酒店的客戶、贊助人或客人收取的聯邦、州和市政消費稅、入住稅、銷售稅和使用稅，作爲任何商品、服務或其他項目的銷售價格的一部分或基於任何商品、服務或其他項目的銷售價格，如毛收入、房間、入場費、歌舞廳或同等稅款，並要求向政府當局支付。.
““統稱是指(1)借款人在酒店物業內的酒店正常業務過程中進行的常規酒店交易的入住率安排，包括酒店房間或套房的夜間租賃(或許可)、宴會廳使用和餐飲服務；(2)可在一個月或更短時間內無故終止且不收取罰款或保險費的信息或客人服務，包括聯合營銷、促銷服務和外包服務。暖通CRE“指在對任何人使用時，指：(A)在任何借款人或借款人的任何關聯公司中沒有任何直接財務利益或任何重大間接財務利益的人，(B)作爲高級人員、僱員、發起人、承銷商、受託人、合夥人、成員、經理、債權人(由於向任何借款人或任何關聯公司提供服務的人除外)而與任何借款人或任何借款人的任何關聯公司沒有關係的人，董事、供應商、客戶或執行類似職能的人，及(C)並非上文(A)或(B)項所界定人士的直系親屬。.
“獨立建築師指由任何借款人選擇的建築師、工程師或建築顧問，該借款人是獨立的，在加利福尼亞州獲得執業許可，具有至少十(10)年的建築經驗，並且代理人合理地接受。
“獨立董事“指具有獨立董事、獨立經理人或獨立會員經驗並至少有三(3)年僱傭經驗並由Paracorp Inc.(以Parasec身份經營)、CT公司、公司服務公司、國家註冊代理公司、威爾明頓信託公司、斯圖爾特管理公司、洛德證券公司提供的個人，或如上述公司中無一家提供專業獨立董事，則指經貸款人合理批准的另一家國家認可公司，在每一種情況下，該公司不是任何借款人的附屬公司，並在其正常業務過程中提供專業獨立董事和其他公司服務，哪位個人被正式任命爲獨立董事，並且不是，在擔任獨立董事期間，從來不是，在擔任獨立董事期間也不會是：
“(B)向任何借款人或其任何股權持有人或關聯公司(不包括在正常業務過程中定期向任何借款人或其任何關聯公司提供專業獨立董事和其他公司服務的國家認可公司)提供債權人、供應商或服務提供商(包括專業服務提供商)；
12
49289660

“(C)任何該等成員、合夥人、股權持有人、經理、董事、高級職員、僱員、債權人、供應商或服務提供者的家庭成員；或
“在其他方面滿足前述定義並因是與借款人有關聯的「特殊目的實體」的獨立董事而滿足(A)項規定的自然人，應有資格擔任借款人的獨立董事，但該個人在任何給定年度從作爲任何借款人的附屬公司的獨立董事中賺取的費用總和不得超過該個人該年度年收入的5%。就本款而言，「特殊目的實體」是一個實體，其組織文件載有對其活動的限制，並施加旨在保持這種實體的獨立性的要求，這些要求基本上類似於附表II
“在這裏。指數下限.
“初始預付款“是否具有在
“第2.1.2(A)節初始到期日
“指2027年1月1日或貸款全部本金到期或以加速或其他方式支付的較早日期。初始項
“土地“具有抵押品中所規定的含義。
“租賃如本文所用，酒店物業的「租賃」一詞不應包括酒店交易、經營租賃、停車場租賃和停車協議。
““具有在中指定的含義第5.10(A)條
“法律要求
“任何政府當局當時有效並適用於任何借款人、任何擔保人或任何其他信貸方、抵押品或抵押財產或其任何部分的規定(包括有關消防、健康、殘疾人通道、衛生、生態、歷史、分區、環境保護、溼地和建築方面的法律和1990年頒佈的《美國殘疾人法》第89-670,104號法令第327(1990)號，以及據此頒佈的所有條例)。出借人股份.
“出借人“具有本協定第一款規定的含義。
“承租人
13
49289660

許可證吊銷事件“應指拒絕、吊銷或暫時吊銷與酒店物業有關的入住證或酒類許可證。”).
“留置權“指任何信託契據、按揭、質押、租賃和租金轉讓、擔保權益、產權負擔、留置權或任何種類的押記，包括任何有條件出售或其他所有權保留協議、任何具有與前述任何條款相同經濟效果的融資租賃，或根據任何司法管轄區的統一商法典提交任何融資聲明或提供任何融資聲明的任何協議。
“行項目“具有在中指定的含義
“第5.43(A)條。酒類監督
“「或」酒類管理部門，
““如適用，應指負責解釋、實施和執行酒類法律的適用酒精飲料委員會或其他政府當局。酒類法律
““指適用於或涉及借款人在加利福尼亞州銷售和分銷酒類的法律、規則、法規和命令，包括適用的酒類主管部門對此的政策、解釋和管理。白酒許可證
14
49289660

指由適用的酒類主管部門授予或簽發的在酒店物業銷售或分銷酒類的任何許可證、許可證或其他授權，包括但不限於由以下人員簽發的許可證：373810號酒精飲料許可證(68型、DUP3型、68型、2型、68型、1型、58型、1型、47型、46型、1型)，有效期爲2024年4月1日
“加州酒精飲料控制部門授予喜來登酒店經理的附屬公司和/或數據庫。貸款
““是否具有在第2.1條
“貸款額度”, ““具有本演奏會中所闡述的含義。貸款文件
“按揭成數
“貸款費用函
““指截至本合同日期，代理人和借款人之間關於借款人就貸款向代理人或其附屬公司支付費用的某些信件。低債務收益率時期的治癒
“低債務收益率時期觸發期
““意味着，截至任何確定日期，債務收益率低於10.25%(10.25%)。重大里程碑
“提供在(A)、(B)和(C)條款中，項目最終完成所需的日期應(I)延長至借款人(S)與喜來登酒店經理在2025年酒店管理協議修正案中商定的項目最終完成所需的適用較後日期，以及(Ii)在適用的不可抗力的範圍內。管理協議
““指與物業有關的管理或類似協議。經理從屬協議“指車庫經理從屬協議、酒店從屬協議、停車場經理從屬協議以及酒店經理和代理商之間簽訂的任何其他從屬協議。實質性不良影響
15
49289660

““指對抵押品或任何借款人、任何擔保人、任何其他信貸方或該等人士的任何關聯公司的抵押品或業務、經營、物業、資產、狀況(財務或其他方面)、前景或業績產生重大不利影響，而該影響會對抵押品或借款人或該擔保人履行其在本協議或任何其他貸款文件項下的義務的能力造成重大不利影響，或會對代理人強制執行或收回任何債務的能力造成重大不利影響。在確定任何個別事件是否會導致「重大不利影響」時，儘管該事件本身並不具有這種影響，但如果該事件和當時正在發生的所有其他事件和現有條件的累積影響將導致「重大不利影響」，則「重大不利影響」也應被視爲已經發生。材料協議
“提供
“PBGC“指養老金福利擔保公司或根據ERISA履行其任何或所有職能的任何人。養老金留置權“應指因任何集體談判協議下的任何爭議而產生的任何留置權，或任何工會或其他工會勞工組織或其代表針對財產提起的任何留置權。
“養老金計劃「指ERISA第(3)(3)節所指的」僱員福利計劃“，但多僱主計劃除外，該計劃須受ERISA第(4)章或守則第(412)節或ERISA第(302)節規定的最低籌資標準所規限，以****何借款人或任何ERISA附屬公司的僱員維持的或任何此類僱員參與的或由任何借款人或任何ERISA附屬公司供款的計劃，或(Ii)任何借款人或任何ERISA附屬公司可能根據ERISA標題IV承擔任何責任的計劃。
““統稱是指(A)貸款文件產生的任何留置權和擔保權益，(B)保單附表b中披露的任何留置權、產權負擔和其他事項，(C)任何尚未到期或拖欠或根據下列規定成爲允許競爭標的的任何留置權第5.8條.
“，(D)針對抵押財產提交的勞工或材料的法定留置權，而這些勞動或材料是依據下列規定進行的許可競爭的標的第5.8條
“，(E)針對根據任何允許的設備融資而融資的設備提出的任何留置權，(F)租賃和任何酒店交易，以及(G)代理商根據第5.7條
“但如果本定義第(D)或(F)款所述的任何產權負擔優先於抵押權留置權，則除非在產生任何此類產權負擔之前，代理人以書面形式同意，否則該產權負擔不應是允許的產權負擔。許可設備融資允許股權轉讓
““意思是：(一)轉讓移動通信公司公開交易的所有權權益或直接或間接擁有移動通信公司公開交易的所有權權益的任何人；
“(二)中國移動增發或增發普通股；(三)中國移動爲存續單位，繼續擔任擔保人，並符合《擔保》中的財務約定，繼續間接對借款人擁有最終控制權的，與他人合併或合併；
“(5)在特拉華州有限合夥企業CIM Urban Reit Properties XIII，L.P.的直接和/或間接權益的質押，與合格機構貸款人對個人全部或基本上所有資產的公司融資有關，或此類催繳資本承諾的權利，如果任何借款人的直接和/或間接受益權益不超過質押給該合格機構貸款人的抵押品價值的25%(25%)(包括止贖，只要止贖構成允許的股權轉讓)；$(6)借款人的任何間接擁有人就其在該借款人的間接實益權益所進行的轉讓(爲清楚起見，不包括(X)任何轉讓、轉讓或出售任何借款人的直接權益，或(Y)任何質押任何借款人的直接權益或主要爲持有任何借款人的直接或間接權益(而非其他重大資產)而組成的任何實體的權益)，只要在所有情況下，在該項轉讓生效後(如任何轉讓屬質押或其他產權負擔，假設喪失抵押品贖回權或以其他方式行使此類質押或其他產權負擔下的補救措施)應滿足下列所有條件：
“(A)在這種轉讓後的第二天，(I)每一控制方應保持對每一借款人的控制(無論是通過具有表決權的證券或合同的所有權)，以及(Ii)中國結算或任何已滿足覈准擔保人條件的核準擔保人應繼續成爲每一借款人的間接組成所有者(S)，並在每一借款人中至少擁有至少50%(50%)的總間接所有權權益；*在任何情況下，任何被禁止的人不得擁有任何借款人或擔保人的任何直接或間接所有權權益(爲此，不包括其股票在美國證券交易所公開交易的任何實體的公開交易所有權權益，或通過擁有此類公開交易的股票而持有任何借款人或擔保人的直接或間接所有權權益的任何人)；(C)如果上述任何轉讓中的受讓人在轉讓後立即獲得對任何借款人或擔保人的控制權、任何借款人或擔保人或任何直接或間接控制任何借款人或擔保人的人的10%(10%)或更大的所有權權益(且該受讓人沒有控制該借款人或擔保人或在該借款人或擔保人或在該轉讓前直接或間接控制任何借款人或擔保人的任何人中持有10%(10%)或更高的所有權權益)，借款人應至少在轉讓完成前十五(15)個工作日向代理人提供有關每筆轉讓的通知。連同代理人或貸款人就其慣常的「認識您的客戶」要求而合理要求的有關適用受讓人(S)的資料，代理人及各貸款人應已確認其已收到有關該受讓人的滿意搜索結果；.
16
49289660

“(D)自轉讓、轉讓或出售之日起，不應發生任何貨幣違約、重大非貨幣違約(代理人已發出通知)或違約事件；(E)除已依據《公約》規定的範圍外，不適用(C)條.
“如上所述，在轉讓導致最近交付給代理人的借款人或擔保人的組織結構圖發生變化後三十(30)天內，借款人應就此向代理人發出書面通知(代理人此後應立即通知貸款人)，以及適用的借款人和/或擔保人的最新組織結構圖的副本；(F)所有稅項(所得稅除外)，包括印花稅、按揭記錄稅、轉讓稅、記錄稅、無形稅項及其他與該項轉讓有關的稅項、收費及費用，應由轉讓人或建議的受讓人在建議的轉讓時繳付，如因建議的轉讓人或建議的受讓人在任何借款人或按揭財產中的間接所有權權益而到期支付該等款項，則該項付款的證據須在轉讓後三十(30)天內送交代理人；.
“(H)確保轉讓是允許的，並符合《酒店管理協議》和《經營協議》。覈准基金經理.
“准許負債“統稱係指(A)票據及本協議、按揭及/或其他貸款文件所擔保的任何貸款文件所特別規定的其他義務、債務及負債，(B)附帶賠償及根據該人根據貸款文件訂立的協議而持有的無害協議，(C)貿易債務、應付帳款、有條件銷售合約及准許的設備融資及其他有形個人財產項目，(I)在任何時間合計不得超過250,000美元，(Ii)未有票據證明，及(Iii)如屬貿易債務或應付帳款，則在發生上述債務或應付款項後九十(90)天內支付；(C)在正常業務過程中並根據本協議所載條款發生的各項債務；(D)根據與零期改造項目及/或PIP項目相關訂立的合同而產生的應付款項；及(E)酒店經理代表酒店費用借款人及/或營運承租人借款人所產生的債務，而根據酒店管理協議，酒店經理可在未經借款人批准的情況下招致債務。
“PfandBrief承諾“是否具有在
“PIP平面圖和規格“應指經酒店經理(在適用的酒店管理協議下需要批准的範圍內)和代理人批准的PIP項目的計劃和規格，不得無理拒絕批准，包括由借款人的建築師和其他設計專業人員根據本協議條款編制並經代理人審查和批准的任何建築、結構、機械、電氣、管道、消防和電梯的計劃和規格，其中任何計劃和規格均可根據本協議的條款不時進行修改和補充。截至截止日期生效的PIP計劃和規範更詳細地描述在
日程表xi
附於此。
PIP項目
“指借款人根據《2025年酒店管理協議》的要求並經代理商批准對酒店進行的翻新和發展，包括PIP項目第一階段和第二階段，所有這些都符合PIP計劃和規範以及PIP預算。
17
49289660

PIP項目第一期
“應指《2025年酒店管理協議》翻修附錄附表1中定義的以及工作範圍所規定的「第一階段」。PIP項目第二期
“應指《2025年酒店管理協議》翻修附錄附表1中定義的、工作範圍爲2期的酒店。PIP項目報告“應指由施工顧問根據其對PIP預算、PIP計劃和規範、PIP施工進度表、總承包商協議、合同、與PIP項目相關的材料協議、PIP項目檢查以及施工顧問合理要求的與PIP項目相關的其他文件和信息的審查，編制定期報告。計劃資產
““是否具有在第3.27節
“圖則及規格“在適用的情況下，應單獨或共同指(I)零階段翻新計劃和規範以及(Ii)PIP計劃和規範。
“預付費“應指相當於收益維持保險費的數額。
“優質指數可評級份額
“可評級「或」
18
49289660

“按比例“對於任何貸款人來說，指的是其在貸款中的份額，該份額基於該貸款人預付或持有的未償本金餘額佔貸款未償本金總額的比例。 在截止日期貸款融資生效後，本協議日期每個貸款人的可評級股份載於 附表五.
“ 附於此併成爲本文的一部分。利率上限名義金額表“具有利率保護協議定義中規定的含義。.
“速率轉換“具有 第2.9.3節 這裏。費率保護抵押品“具有中指定的含義
“第2.9.2節 這裏。接收者“指（a）代理人或（b）任何分包商（如適用）。
“追索保證“具有中規定的含義 第4.1（e）（7）節 這裏。
“第二個延期到期日“具有中規定的含義 第2.17（b）節.
“ 這裏。第二次延期
19
49289660

“具有中規定的含義
“第2.17（b）節 這裏。
“二級市場交易“具有中規定的含義
“第8.1（a）節。證券“具有中規定的含義 第8.1（a）節。
“安全文件“統稱本協議、抵押貸款、利率保護抵押品轉讓、任何帳戶協議和UCC融資報表。 爲免生疑問，即使本協議或任何貸款文件中包含任何相反規定，環境賠償和擔保不應構成「擔保文件」，也不應由擔保文件擔保。
20
49289660

服務機構
“承保淨現金流“應指在確定包銷淨現金流量的任何日期，包銷的運營毛收入減去截至最近一個日曆月報告的十二(12)個日曆月期間的運營費用總和，調整以反映代理人確定的：(I)與車庫物業有關的空置率，(I)等於(A)實際空置率的較大者車庫財產(停車除外)和(B)車庫財產可出租面積的5%(停車除外)；(2)除非承租人或租賃擔保人是投資級實體，否則不包括從目前未佔用的承租人那裏收到的金額，而不包括與任何借款人或擔保人有關聯的承租人，
“友聯市“應指(I)國際操作工程師、固定工程師聯合會、當地39人和(Ii)在此聯合當地49人。更新信息“是否具有在
“第8.1(B)(I)條)在此。更新通知“是否具有在
“第9.12(B)條。美國利華
““應指住宿業統一會計制度第9版(或借款人採用的最新版本)。美國《銀行保密法》
“美國政府證券營業日“指除(A)星期六、(B)星期日或(C)證券業和金融市場協會或其任何繼承者建議其會員的固定收入部門全天關閉以進行美國政府證券交易的任何日子。美國人
“「指本守則第7701(A)(30)條所界定的」美國人“。美國稅務合規證書
““具有第2.11(F)(Ii)(2)(C)款中賦予該術語的含義。《警告法案》
““應指《工人調整和再培訓通知法》或任何其他適用的類似州法律。減值和折算權力“是否具有在第10.26(B)條
“產量維護日期“是指2026年3月1日。產量維持最低限度“指根據本協議從結算日開始至收益率維持日(包括收益率保持日)的貸款應支付的利息總額，假設貸款的未償還本金餘額爲該期間的最高貸款額；
“前提是，如果貸款在收益率維持日期之前償還或預付(或加速)，代理人應根據SOFR期限的遠期曲線或截至收益率維持日期的適用基準替代，合理地酌情確定截至收益率維持日期的期間的利息。
21
49289660

收益維持保費
“其他定義條文
“本協議中定義的所有術語在票據或任何其他貸款文件中使用時，或在根據本協議製作或交付的任何其他證書、報告或其他文件中使用時，應具有上述定義的含義，除非其中的上下文另有要求。
“「這句話」以下是。代理商應立即通知借款人任何此類符合要求的變更的有效性。計息
“。未償還本金餘額的利息，不論按利率或違約利率計算，計算方法爲：(A)乘以計算期間的實際天數，乘以(B)等於利率或違約利率(或利率和違約利率的加權平均數，根據適用於利率和違約利率的任何期間的相應計算期間的天數)的每日利率除以360，除以(C)計算利息的相關利息期間的平均未償還本金餘額，並應根據適用於該貸款的未償還本金餘額就該貸款應計。計算每個支付日到期利息的應計期間爲緊接該支付日之前的利息期間。本金支付
“到期還本付息。借款人應在到期日分一次支付貸款的未付本金餘額，連同所有應計和未付利息(在適用範圍內，包括按違約利率計算的利息)、所有額外利息、預付費(如果適用)、費用、開支、收費以及根據本協議和其他貸款文件到期和應付的任何其他金額。
“可選提前還款。
“第2.6節，借款人可在不少於三十(30)天前通知代理商，預付全部貸款(或，(X)以終止現金清算期，或(Y)以滿足下列先決條件第2.17(B)(Viii)條2.17(C)(Viii)
“或2.17(D)(Vii)
22
49289660

在不早於到期日前三十(30)天的日期，部分地)在任何營業日
“第2.4(B)條。任何此類提前還款通知應指定提前還款的日期，並可撤銷，但如果在通知中規定的提前還款日期前三(3)個工作日撤銷，則借款人應負責支付代理人或貸款人因撤銷而產生的任何自付費用。與任何預付款有關，但與第2.6節.
“借款人應遵守以下規定：所有預付款的金額應不少於1,000,000美元，除非最後剩餘的金額少於1,000,000美元(在這種情況下，這種預付款應爲全部剩餘金額)； 成本增加和資本充足率
“借款人同意向任何貸款人支付必要的額外金額，以補償其維持其貸款份額所產生的成本，或任何在任何一種情況下，由於任何適用的法律、法規或條約或其解釋或管理的任何變化，由負責解釋或管理該貸款人的任何國內或外國政府當局(無論是否具有法律效力)，或由任何國內或外國法院(包括，儘管本文有任何相反規定，包括《多德-弗蘭克華爾街改革和消費者保護法》及所有要求、規則、指南或指令，或與之相關的指令，不論其頒佈、通過或發佈的日期(但僅限於實際實施的範圍)，或法院或政府當局的任何裁定，在任何情況下，在此日期之後生效，或該貸款人遵守任何中央銀行或其他政府機構在此日期後發佈或作出的任何準則、請求或指令(無論是否具有法律效力，包括國際清算銀行、巴塞爾銀行監管委員會(或任何後續機構或類似機構)或美國或外國監管機構在每種情況下發布的所有請求、規則、準則或指令，根據《巴塞爾協議III》，不論制定、採納或發出的日期(但僅限於實際實施的範圍)，(I)施加、修改或運用任何儲備金、特別存款或類似的要求，以抵押者的資產、任何貸款人發放的信貸的存款或任何貸款人爲貸款而取得的任何其他資金(不論是直接、間接或廣泛的投資組合)，或(Ii)對任何貸款人施加任何其他影響票據或貸款的條件。該貸款人將盡力在獲悉該事件並決定要求賠償後，在切實可行的範圍內儘快通知借款人(將副本交給代理人)，使其有權根據本款獲得賠償(但未如此通知並不減少該貸款人應得到的賠償)，並將爲受該事件影響的貸款部分指定一個新的適用貸款辦事處，如果這種指定將避免需要或減少該賠償的數額，並且該貸款人合理地認爲不會對其不利，但該貸款人無義務指定設在美國的適用貸款辦事處。如果借款人因此而承擔的額外費用
“第2.13(A)條超過(X)年未償還本金餘額的0.5%(0.5%)或(Y)超過任何一年的2,000,000美元，借款人有權在不少於九十(90)天的書面通知前全額償還債務，借款人將不會就任何此類提前還款支付額外利息。
“如果任何貸款人真誠地決定：(I)在本合同生效日期後，有關資本充足率或其解釋、管理或適用的任何法律、規則、條例或準則的任何變更或採用(包括，儘管有任何相反規定，包括)(1)《多德-弗蘭克華爾街改革和消費者保護法》和根據該法或與此相關發佈的所有請求、規則、準則或指令，以及(2)國際清算銀行頒佈的所有請求、規則、準則或指令，巴塞爾銀行監管委員會(或任何繼承者或類似機構)或美國或外國監管機構，在每一種情況下，根據《巴塞爾協議III》，無論是在頒佈、通過或發佈之日的第(1)和(2)款的情況下(但在第(1)和(2)款的情況下，僅在實際實施的範圍內)或(Ii)任何貸款人或任何貸款人的任何貸款辦事處或任何貸款人的控股公司，遵守任何此類機構關於資本充足性的任何要求或指令(無論是否具有法律效力)，中央銀行或基於任何此類變更或收養的類似機構，已經或將會將任何貸款人的資本回報率降低到低於如果沒有此類採用、變更或合規(考慮到此類貸款人關於資本充足性的政策)，貸款人本應實現的水平，則借款人應不時向代理商支付額外金額，以補償貸款人關於未償還貸款任何部分的實際減少。如果根據本協議向借款人支付的額外費用第2.13(B)條
“超過未償還本金餘額(X)的0.5%(0.5%)的較小者每年或(Y)在任何一年超過2,000,000美元，借款人有權提前不少於九十(90)天的書面通知全額償還債務，借款人不會因任何此類提前還款而支付額外利息。
“借款人根據以下規定應支付的任何款項第2.13(A)條
“或 借款人收到代理人證明後十（10）天內，應爲每位受影響的借款人的利益向代理人支付本合同，證明到期金額以及借款人確定該金額的基礎，該聲明應具有決定性並對借款人具有約束力，且無明顯錯誤。 每個受影響的借款人應努力迅速通知借款人發生本事件 第2.13節 這將導致借款人被要求根據本規定向代理人或此類借款人支付任何款項
“第2.13節提供
“然而，，借款人未能提供此類通知並不免除借款人根據本規定承擔的義務
“第2.13節或向借款人或任何其他人提供針對代理人或任何貸款人要求任何損害賠償或行使任何其他權利或補救的權利；
“提供進一步
23
49289660

“代理人或任何貸款人未能就可歸因於任何特定期間的任何該等款項要求借款人付款，並不構成放棄代理人或任何貸款人就該期間或任何隨後或之前的期間要求付款的權利。關於下列任何參與者或受讓人第八條還有這個
“第2.13節「任何適用的法律、條例或條約的變化，或其解釋或管理的變化」應與參與者或受讓人成爲參與人或受讓人(視情況而定)時的法律相比較，而不是以本協議之日的法律爲基礎。
“關於抵押財產徵稅的法律變化。如在本條例日期後通過任何法律，以從不動產的價值中扣除任何留置權或產權負擔，或以任何方式更改信託契據、按揭或以信託契據或按揭作爲擔保的債務的課稅法律，或更改任何此等稅項的徵收方式，並直接或間接對任何票據、按揭或任何其他貸款文件徵稅，借款人應在法律允許的範圍內，在代理人提出要求後十(10)天內，支付因任何此類法律而徵收的任何稅款，以及足以補償貸款人因任何此類付款而徵收的任何稅款的金額。
“提供如果代理人律師合理地認爲，法律不允許借款人繳納該等稅款，代理人有權選擇向借款人發出通知，在發出通知後不少於九十(90)天宣佈貸款已到期並應支付。
“高利貸。本協議、票據及其他貸款文件均受一項明確條件所規限，即借款人在任何時候均不得要求借款人就未償還本金餘額支付利息，而該利率可能會令代理人或任何貸款人因超過最高法定利率而負上民事或刑事責任。如果根據本協議或其他貸款文件的條款，借款人在任何時候被要求或有義務以超過最高法定利率的利率支付未償還本金餘額的利息，則利率應被視爲立即降至最高法定利率，超過最高法定利率的所有以前付款應被視爲本金減少支付，而不是本協議項下到期利息的支付。在適用法律要求允許的範圍內，支付或同意支付給代理人或任何貸款人的所有款項，應在適用法律要求允許的範圍內，在貸款的整個規定期限內攤銷、按比例分配和分攤，直至全額支付，以使貸款的利率或金額不超過貸款的有效最高法定利率，並在貸款未償還期間適用於貸款。
“費用借款人應按照貸款費用函的條款向代理人支付應付費用和開支。
“在全額償還或預付貸款(包括與加速貸款有關的情況下)時(根據第2.6節
24
49289660

“借款人應在還款或提前還款(或加速貸款)之日向代理商支付預付費。提前還款應視爲貸款人在貸款結束時賺取的費用。任期延長
“一般. 在符合本規定的條件的情況下
“第2.17節，借款人應有三（3）個選擇（每個，一個“
“延期選擇權”）延長當時現有的到期日。第一種選擇可根據中的規定行使
第2.17（b）節
並應延長初始到期日（該延長期在本文中稱爲“
第一個延期期限
”）至2028年1月1日（“
首次延期到期日
”). 第二種選擇應根據中的規定可行使
25
49289660

第2.17（c）節
“ 並應延長首次延長到期日（該延長期在本文中稱爲“第二次延期”）至2029年1月1日（“.
“第二個延期到期日”). 第三種選擇應根據中的規定進行行使
“第2.17（d）節
“第三次延期期限)至2030年1月1日(
“第一個延期期限的條件
。借款人可選擇將期限延長至下述第一個延期期限屆滿爲止
第2.17(A)條
26
49289660

應在初始到期日(或可能明確規定的其他較早日期)或之前滿足下列條件：
借款人應在不遲於初始到期日前三十(30)天向借款人選擇代理機構遞交書面通知以延長該期限，該通知自初始到期日前兩(2)個工作日起不可撤銷；
借款人和任何其他人根據本協議或其他貸款文件在初始到期日或之前到期和應付的所有金額，以及與貸款和/或延長期限有關的代理的所有費用和支出，包括代理律師費用，應已全額支付；[故意留空]；零期改造項目、PIP項目一期、PIP項目二期工程最終竣工；
“第2.9條
“(I)利率保障協議的期限不早於延長期限的最後一天終止；(Ii)等於不少於當時未償還本金餘額的名義金額的名義金額和基於利率上限名義金額表的名義金額表；及(Iii)等於執行價格的執行利率以及(B)交付交易確認書、ISDA主協議或同等文件的副本以及以下文件的合理要求代理人，所有這些都應證明借款人遵守了本條前一條第(A)款；在初始到期日，不應發生並持續發生貨幣違約、重大非貨幣違約(代理人已發出通知)或違約事件；.
“貸款文件中所作的陳述和擔保(代理人或貸款人除外)在初始到期日應在所有重要方面都是真實和正確的，其效力與在該日期所作的相同，但本文中的借款人或借款人和/或任何其他貸款方在其他貸款文件中所作的任何陳述或保證除外，該等陳述或保證在所有重要方面不再是真實和正確的，原因是在最近作出該等陳述和保證的日期之後發生的事件，債務收益率(按照以下規定提前償還貸款後)
“第2.4條，如適用)截至初始到期日應等於或小於12%(12.00%)；
“借款人應在初始到期日將本協議規定的金額存入子帳戶；《酒店管理協議》應保持完全效力，借款人已收到通知的任何違約行爲均應得到糾正(超過任何通知和補救期限)；以及第2.17(B)條
“第二次延期的條件。借款人可選擇將期限延長至第二次延期期限屆滿，如第2.17(A)條.
“應在第一個延期期限的最後一個工作日(或可能明確規定的其他較早日期)或之前滿足下列條件：
“借款人和任何其他人根據本協議或其他貸款文件在第一個延長的到期日或之前到期和應付的所有金額，以及與貸款和/或該期限的延長有關的所有代理費用和費用，包括代理律師費用，應已全額支付；在第一個延期到期日，借款人應爲貸款人的應得利益向代理人支付不可退還的延期費用，金額爲未償還本金餘額的四分之一(0.25%)(在給予
“根據本合同第2.4節(如適用)對貸款的任何預付款的效力)；故意留空；
27
49289660

借款人應已(A)根據第2.9節的適用條款修改利率保障協議的條款或訂立新的或補充的利率保障協議(其中(I)利率保障協議的期限不早於延期期限的最後一天終止；(Ii)不少於當時未償還本金餘額的名義金額和基於利率上限名義金額時間表的名義金額表；
“在第一個延長的到期日，不應發生任何貨幣違約、重大非貨幣違約(代理人已發出通知)或違約事件；貸款文件中所作的陳述和擔保(代理人或貸款人除外)在第一個延長到期日當日和截至該日期時應在所有重要方面都是真實和正確的，其效力與在該日期所作的相同，但本文中的借款人或借款人和/或任何其他貸款方在其他貸款文件中所作的任何陳述或擔保，僅由於最近作出該等陳述和擔保的日期之後發生的事件在所有重大方面不再真實和正確，該事件不構成違約或違約事件，則不在此限。而該等申述及保證須予更新，以反映自該等申述及保證最近作出的日期以來所作的更改，並在首次延長的到期日重新作出如此更新的更改；截至第一個延長到期日的債務收益率(如果適用，在按照第2.4節實施任何貸款預付款後)應等於或小於12.25%(12.25%)；, 借款人應在第一個延長到期日時，按本協議規定的金額存入子帳戶；《酒店管理協議》應保持完全效力，借款人已收到通知的任何違約行爲均應得到糾正(超過任何通知和補救期限)；以及
“借款人應在首次延長到期日前至少兩(2)個工作日向代理商遞交一份借款人出具的證明，其形式和內容應合理地令代理商滿意，以證明本合同第(Ii)至(X)款所述事項第2.17(C)條。
“。如第2.17(A)節所述，借款人選擇將期限延長至第三個延期期限屆滿時，應在第二個延期期限的最後一個營業日或之前(或可能明確規定的其他較早日期)滿足下列條件：
(a)借款人和任何其他人根據本協議或其他貸款文件在第二個延長的到期日或之前到期和應付的所有金額，以及與貸款和/或該期限的延長有關的所有代理費用和費用，包括代理律師費用，應已全額支付；在第二個延長到期日，借款人應爲貸款人的應得利益向代理人支付不可退還的延期費用，金額爲未償還本金餘額的百分之一(0.25%)的四分之一(在按照本合同第2.4條規定對貸款進行任何預付款後，如果適用)；
(b)和(Iii)與執行價相等的執行率和(B)交付交易確認書、ISDA主協議或等價物的副本以及代理人合理要求的任何其他文件，所有這些文件都應證明借款人遵守了本條款前面(A)款的規定；
(c)在第二個延長的到期日，不應發生並繼續發生貨幣違約、重大非貨幣違約(代理人已發出通知)或違約事件；
(d)貸款文件中所作的陳述和擔保(代理人或貸款人除外)在第二個延長到期日當日和截至該日的所有重要方面均應真實和正確，其效力和效力與在該日期所作的相同，但本文中的借款人或借款人和/或任何其他貸款方在其他貸款文件中所作的任何陳述或擔保僅由於最近作出該等陳述和擔保的日期之後發生的事件在所有重大方面不再真實和正確，該事件不構成違約或違約事件，則不在此限。
28
49289660

截至第二個延長到期日的債務收益率(如果適用，在按照第2.4節實施任何貸款預付款後)應等於或小於12.25%(12.25%)；
(e)借款人應在第二個延長到期日時，按本協議規定的金額存入子帳戶；
(f)《酒店管理協議》應保持完全效力，借款人已收到通知的任何違約行爲均應得到糾正(超過任何通知和補救期限)；以及
“借款人應在第二次延長到期日前至少兩(2)個工作日向代理商遞交一份借款人出具的證明，其形式和內容應合理地令代理商滿意，證明本合同第(Ii)至(X)款所述事項
“在全額償還時釋放財產。代理人應根據書面請求，由借款人承擔費用，並應遵守
“第2.18(B)條在按照貸款文件的條款和條款全額償付債務後，解除抵押的留置權(或應借款人的要求，將其轉讓給新的貸款人)並終止租賃轉讓；但借款人應支付代理人和貸款人因此而發生的任何費用、稅金和費用，以及代理人和貸款人準備和交付解除或轉讓文件的合理律師費。在這種解除或轉讓中，代理人和/或貸款人應提交借款人合理要求的其他文件，包括但不限於，證明所有抵押品轉讓文件、帳戶控制安排和常規命令終止的文件(前提是借款人應支付與此相關的所有貸款人和/或代理人的費用)。就解除或轉讓按揭及轉讓租賃而言，借款人須於借款人打算全數償還債務的日期前不少於五(5)個營業日，向代理人呈交按揭物業的解除或轉讓按揭及轉讓租約。該免除或轉讓應(I)採用適合在抵押財產所在司法管轄區進行記錄的形式，(Ii)應合理地令代理人滿意，以及(Iii)包含代理人可能合理要求的保護代理人權利的規定(如果有)。此外，借款人應提供代理人合理要求借款人交付的所有其他文件(包括但不限於UCC-3融資報表)，以及證明此類文件(I)符合所有法律要求，(Ii)將根據本協議的條款進行此類釋放或轉讓的官員證書。借款人應支付與解除或轉讓抵押留置權相關的所有費用、稅款和費用，包括代理人的合理律師費。
“所需的平倉股票基金。在截止日期或之前，代理人應已收到以下證據：(I)借款人的間接投資者合計出資至少3,834,023.79美元的現金股權(該現金股權不是通過任何以抵押財產爲抵押品的借款獲得的)(“
“要求的期末權益金額“)，及(Ii)在實施本協議所述的交易後，截至成交日期，所需的成交權益金額仍投資於該物業。
“零點期改造推進和PIP推進一般。貸款人應應借款人的要求，並在滿足本協議中規定的所有適用條件後.
“第2.20節，根據適用的第零階段翻新費用和PIP費用預付款(每項費用均爲“
29
49289660

零點期改造推進
“「或」PIP預付款
““，分別)不時根據《附註》和本協議，總金額不得超過第零階段翻新預付款最高金額和PIP預付款最高金額(視適用情況而定)。貸款人提供零期改造墊款和/或PIP墊款的義務應符合以下本條款中規定的適用條件第2.20節
“，在貸款人進行任何此類零階段改造之前，必須滿足所有適用的先決條件預付款和/或PIP預付款(本協議中規定的條件
“第2.20節統稱爲“
“先行條件
“。預付款必須用於支付與零期改造項目和/或PIP項目相關的已批准的翻新/PIP費用(並且必須以代理商合理滿意的方式予以證實)。繪製請求。借款人應在所要求的融資日期(每個，a)前不少於十(10)個工作日，向代理商提交一份書面申請，要求零期翻新預付款或PIP預付款
““)，並應附有(A)借款人出具的高級人員證書，說明並證明：(1)申請的零期改造墊款和/或PIP墊款提供資金的項目是經批准的翻新/PIP費用，及其說明，(2)由申請的零期翻新墊款和/或PIP墊款提供資金的與批准的翻新/PIP費用有關的工作(或與該資金申請有關的部分)已以良好和熟練的方式完成，並在所有實質性方面符合所有適用的法律要求，(3)已批准的翻修/PIP費用(或其相關部分)將由所討論的零階段翻新預付款和/或PIP預付款提供資金，該費用不是前一階段零翻新預付款和/或PIP預付款的對象，(4)以前支付的所有零期翻新預付款和/或PIP預付款已用於支付先前確定的已批准的翻新/PIP費用，並已全額支付，且(5)借款人已支付或已向代理人提供令代理人合理滿意的證據，證明借款人正在向借款人支付屬於零期翻新預付款和/或PIP預付款的借款人份額，該費用是在適用的零期翻新預付款和/或PIP預付款之前或同時進行的；(B)與批准的翻修/PIP費用有關的工程所需的所有許可證、許可證和其他政府當局批准的副本，但以前未交付給代理商；(C)申請該零階段翻修預付款和/或PIP預付款的所有發票的副本；以及(D)代理人應合理要求的其他證據，以證明由所要求的零期翻新預付款和/或PIP預付款資助的任何工程已支付或將在付款給借款人時付款(或已提交付款請求的部分已完成並已付款(不屬於付款請求的任何保留金額)或將在付款給借款人時付款)，借款人已向借款人支付了屬於零期翻新預付款和/或PIP預付款的已批准翻新/PIP費用的借款人份額，或此類金額將與適用的零期整修預付款和/或PIP預付款同時支付。零期改造項目/PIP項目。借款人應已交付，且代理人應已批准與該零期改造項目和/或PIP項目相關的、由適用的借款人履行並與該預付款有關的慣常交付成果，包括計劃和規格、所有施工合同和設計專業協議的副本、與該工作有關的所有許可證以及代理人合理要求的關於
“零階段翻新項目和/或PIP項目，如適用，由作爲此類預付款標的的適用借款人執行。酒店管理協議書
“《酒店管理協議》應保持完全效力，借款人已收到通知的任何違約行爲均應得到糾正(超過任何通知和補救期限)。利率保護協議
30
49289660

。如於提供有關墊款後的未償還本金結餘將超過利率保障協議或替代利率保障協議項下當時適用的名義金額，則借款人須就該等墊款(及作爲該等墊款的一項條件)修訂、修訂及/或替換該利率保障協議或替代利率保障協議(或利率上限名義金額附表)，使該等替代利率保障協議或替代利率保障協議下的名義金額不得少於該等墊款生效後的未償還本金餘額。

“留置權豁免。代理人應以代理人合理接受的形式，從所有承包商那裏收到正式簽署的留置權豁免，這是有條件的留置權豁免(從待決的預付款中支付)和無條件的留置權放棄(對於先前預付款的所有付款)，適用的形式是所有承包商就批准的翻新/PIP費用以及在預付款日期之前提供的所有勞動力或材料提供的所有勞務或材料，但關於根據第5.8條。.
“。代理人應已收到(I)產權續期通知，表明自上一次預付款以來，物業的所有權狀態沒有發生不利的變化(許可的產權負擔除外)，也沒有關於尚未經代理人批准的物業的新的測量例外情況，同時還應收到代理人滿意的其他證據，證明沒有機械師的留置權或其他留置權已提交併保持提交，以及(Ii)以代理人合理滿意的格式或本合同所附格式對所有權保險單的「日期減少」批註。
“附件D進一步的文件
“. 代理人應已收到代理人、代理人律師或施工顧問可能合理要求的文件、信件、宣誓書、報告、信息和保證。最終翻修/PIP費用預付款
“。關於零期改造項目的最終零期改造預付款，代理商應已收到其建築顧問的確認，確認零期改造項目已最終完成，或代理商應已收到酒店經理的禁止反言函，聲明零期改造項目已根據酒店管理協議全面且令人滿意地完成。由酒店經理提交)，聲明該酒店經理已確認PIP項目第一階段和第二階段(如適用)已按照酒店管理協議全面和令人滿意地完成。
“批准的翻新/PIP費用的最高預付款。在任何情況下，貸款人不得(X)向批准的零期翻新費用墊付超過零階段的最高預付款，(Y)向批准的PIP費用預支超過PIP預付款最高金額，以及(Z)預支超過貸款人在適用抽款申請中規定的批准的翻新/PIP費用的份額。
“借款人權益。在每筆預付款之前，作爲條件，借款人應向借款人支付屬於相關零期翻新預付款和/或PIP預付款的已批准翻新/PIP費用份額，或向代理商提供令代理商合理滿意的證據，證明借款人正在向借款人支付屬於有關零期翻新預付款和/或PIP預付款的已批准翻新/PIP費用份額，同時提供適用的零階段翻新預付款和/或PIP預付款的資金；
“但前提是存入FF&E儲備子帳戶和關鍵貨幣儲備子帳戶的金額應首先由代理商使用和支付，以滿足借款人在批准的PIP費用中的份額和/或借款人在批准的零階段翻新費用中的份額。PIP項目。對於PIP項目任何部分的第一筆預付款，代理商應已收到併合理批准PIP項目的施工時間表。
“無違約；無裝修/PIP成本缺口。於任何墊款要求日期及墊款日期，並無任何金錢違約、重大非金錢違約(代理人已就此發出通知)或違約事件持續發生，亦無持續的翻新/PIP費用短缺。
31
49289660

“陳述和保證。各信用方在貸款單據中作出的所有陳述和擔保，或任何信用方或其代表作出的與此相關的其他陳述和擔保，在作出之日應在所有重要方面均屬真實和正確，並應如同在該墊款之日重新作出一樣真實和正確(除非其僅與不同的時間段有關)，除非借款人或借款人和/或任何其他信貸方在其他貸款文件中作出的任何陳述或擔保，僅由於最近作出該等陳述和擔保的日期之後發生的事件而在所有重要方面不再真實和正確，該事件不構成違約或違約事件。
“高級力學
“。貸款人沒有義務在每個日曆月支付超過一次的預付款，借款人也無權獲得超過一次的預付款而每筆墊款(最後一筆墊款除外)的總額不得少於$100,000.00。成本和開支。借款人應已全額支付(I)代理人和貸款人的所有合理自付費用和與該預付款相關的費用，以及(Ii)所有產權溢價以及其他產權和勘測費用(如果適用)。
“墊款的支付。只要預付款的適用條件得到滿足，貸款人就應按照本合同規定的限制，向借款人預付經批准的翻修/PIP費用。
32
49289660

第2.20節
“。如果代理人自行決定不滿足或放棄任何適用的預付款條件，則貸款人不應被要求提供任何預付款。貸款人支付的任何預付款(無論是支付給借款人還是直接支付給第三方)應計入未償還本金餘額，並應構成債務的一部分。墊款不構成放棄。
“。任何(I)在借款人履行或不履行所有適用條件之前或之前進行的任何墊款，無論代理人或貸款人是否知道，均不構成代理人或貸款人放棄所有墊款要求的所有條件，包括未履行的條件，並且(Ii)不構成放棄貸款人義務進一步墊款的任何條件，在借款人無法滿足任何此類條件的情況下，任何墊款不具有阻止代理人此後宣佈此類無力成爲本合同項下違約事件的效力。直接向承包商和分包商付款。如果違約事件仍在繼續，與借款人已經發生和要求但尚未支付的費用相關的任何預付款，代理商可在其合理的酌情權下選擇這樣做，直接向任何適用的承包商、分包商、物料工或固定裝置或設備供應商支付此類批准的翻新/PIP費用所產生的費用。借款人簽署本協議，將構成支付任何此類預付款的不可撤銷的指示和授權，在此確實如此。對於這種直接付款，不需要或需要借款人的進一步指示或授權，所有這種付款應滿足貸款人在本合同項下的義務，並應以適用的貸款文件作爲擔保，如同直接向借款人作出一樣，無論收款人對其進行了何種處置。貸款人聘請顧問的權利
“。如果借款人選擇按照以下規定延長期限第2.17(A)條
“，代理人可聘請施工顧問核實與適用項目竣工或完工階段有關的條件是否滿足，代理人與施工顧問有關的所有合理的自付費用和支出應由借款人支付。檢查
“。借款人應允許代理人和代理人的代理人以及代理人(包括顧問、工程師、建築師或檢查員)僱用的獨立承包商在酒店經理(以及酒店管理協議的規定)和酒店客人的權利的約束下，在正常營業時間內進入物業，並在合理的提前通知後，(A)檢查物業和與適用項目有關的所有材料、任何批准的翻新/PIP費用、和/或借款人不時或代表借款人進行的與適用項目相關的任何其他工作。(B)審查與適用項目有關的所有詳細圖則和施工圖；及。(C)會見任何建築師、工程師或其他設計專業人士的代表，以及由任何借款人或代表任何借款人進行工程的任何承建商或分包商的代表，以討論與適用項目有關的狀況和問題(及本條款規定借款人授權該建築師、工程師或其他設計專業人員以及借款人的任何承包商或分包商與該等人員合作和討論該等事項，但須事先書面通知借款人)。借款人應促使所有此類承包商和分包商(包括所有承包商)與代理人和/或代理人代表或上述其他人員合作，進行與本合同規定的檢查有關的工作第2.20.6節”, “。借款人應自付本合同規定的檢查費用，無論檢查是由代理人、顧問還是由獨立合格的專業建築師進行的。沒有義務去做工作
“。這裏面什麼都沒有第2.20節
“應使代理人或任何貸款人負責執行或完成全部或任何部分工作，由項目的預付款或任何其他部分提供資金。貸款收益不足
33
49289660

“。在貸款期限內的任何時間，代理人有權(但無義務)以書面形式通知借款人(每個、一名或多名)裝修/PIP費用差額通知
““)根據代理人唯一但真誠的酌情決定權，爲最終完成零期翻新項目和PIP項目所需的所有已批准的翻新/PIP費用的成本超過(I)所有零期翻新預付款和PIP預付款的未支付收益，(Ii)存放在翻新/PIP費用再平衡儲備子帳戶和關鍵貨幣儲備子帳戶的金額，以及(Iii)將與之一起支付的所有剩餘未來股權出資(任何此類不足的金額在本文中稱爲翻新/管道工程費用缺口
““)。如果代理商在任何時候向借款人發出裝修/PIP費用缺口通知，則借款人應從借款人的直接和間接所有人提供給借款人的現金權益中100%(100%)支付隨後批准的所有裝修/PIP費用，並且貸款人在裝修/PIP費用缺口不再存在之前沒有義務爲任何墊款提供資金；
“，一旦發生違約事件，借款人應被要求將資金存入貸款人的子帳戶(翻新/PIP費用重新平衡儲備子帳戶
““)在此類違約事件發生後十(10)個工作日內，相當於此類翻新/PIP費用缺口(或借款人以前未提供資金的剩餘部分)的金額。在違約期間，代理人可自行決定將該金額用於剩餘批准的翻新/PIP費用，或用於立即支付借款人的任何債務。只要翻修/PIP費用再平衡儲備金中有資金，貸款人就沒有義務爲任何墊款提供資金。第三條申述及保證
“爲了促使貸款人發放貸款，並促使貸款人和代理人訂立本協議，並履行貸款人和代理人在本協議項下的義務，每個借款人在此向代理人和貸款人(或在本協議中的陳述和擔保的範圍內)作出聲明和擔保第三條
“將在本協議規定的特定日期重新制作或視爲重新制作)如下(這些陳述和擔保在本協議和其他貸款文件的執行和交付後仍然有效，無論代理人或貸款人或其代表進行的任何調查如何)：到期組織
34
49289660

“。每個借款人都是根據特拉華州法律正式成立並有效存在的有限責任公司。每個借款人都有資格作爲外國有限責任公司在加利福尼亞州開展業務。擔保人是在其物業、業務及營運方面須具備上述資格的每一司法管轄區內均具良好的經營資格，但如不具備上述資格並不會有重大不利影響，則屬例外。每名借款人均擁有所有必要的權力及授權，以擁有其抵押財產，按目前進行或擬進行的方式進行業務，並根據本協議、其他貸款文件、每份管理協議及將由該借款人簽署的與本協議及相關文件相關的所有其他協議及文書訂立及履行其義務。
“正當性執行。本協議、各適用信用方所屬的其他貸款文件和各管理協議均已由各適用信用方正式簽署和交付，並已採取一切必要行動授權各適用信用方履行其在本協議和本協議項下的義務。
“可執行性。本協議和各貸款方或其財產所受約束的其他貸款文件構成該貸款方可對該貸款方強制執行的合法、有效和有約束力的義務，但其可執行性可能受到適用的破產、破產、暫停和影響債權人權利的類似法律、衡平法的一般原則(無論是在衡平法或法律訴訟中尋求強制執行)以及善意和公平交易的默示同意的影響。沒有違規行爲.
“。借款人或任何其他貸款方根據本協議、其他貸款文件、每份管理協議以及將由借款人或任何其他貸款方簽署的所有其他協議和文書，在本協議、其他貸款文件、每份管理協議和所有其他協議和文書項下履行、交付和履行本協議項下的義務，完成本協議中預期的交易，不會也不會(A)違反任何法律要求，(B)不會導致違反任何租賃、任何管理協議或任何其他協議、許可、特許經營、許可證、許可證、特許經營權、許可證、借款人或任何其他信貸方爲當事一方的票據或文書，或借款人及其任何此等人士或其各自財產受其約束的票據或文書；(C)不會導致對任何借款人或任何其他信貸方的任何資產產生或施加任何性質的任何信託契約、留置權、押記或產權負擔(本協議及其他貸款文件所述者除外)；或(D)違反任何借款人或任何其他信貸方的任何組織文件的任何規定。任何信用方都不會違反與其成立或組織有關的任何法律要求。不打官司
“。在法律上或衡平法上或在任何政府當局面前或由任何政府當局提起的訴訟、訴訟或法律程序：(A)在任何借款人、任何其他信貸方或全部或任何部分抵押財產(包括針對全部或任何部分抵押財產的任何譴責或徵用權訴訟和/或任何影響抵押財產的房東/租客程序)待決或據借款人所知，以書面威脅或影響任何借款人、任何其他信貸方或全部或任何部分抵押財產的情況下，可合理預期會導致重大不利影響的訴訟、訴訟或法律程序；或(B)正在等待或據借款人所知受到書面威脅，影響或合理地可能影響任何擔保文件(或其留置權的優先權)、任何其他貸款文件、任何租約或任何管理協議的有效性或可執行性。無違約或違約事件。沒有違約或違約事件發生，而且還在繼續。.
“補償、免責辯護等任何信用方均無權撤銷、抵銷、抗辯(包括高利貸抗辯)或對其在本協議或任何其他貸款文件下的義務提出反訴，借款人放棄任何及所有此類撤銷權、抵銷、抗辯和反訴。
“協議：同意。在任何合同或協議中，任何信用方按照合同或協議的條款履行其義務和義務可合理預期會產生重大不利影響的，則該信用方不是該合同或協議的一方。除准許負債及准許產權負擔外，借款人在其作爲一方或借款人或按揭財產受其他約束的契據、按揭、信託契據、貸款協議或其他協議或文書下，除(A)在按揭財產的正常運作過程中產生的債務及(B)貸款文件下的債務外，並無任何重大財務責任(或有或有)。任何政府主管部門或與之有關或由其採取的所有同意、批准、命令或授權，或與任何政府主管部門有關或由其採取的其他行動和/或任何允許的產權負擔，與任何貸款方有效地籤立、交付和履行該貸款方爲其一方的貸款文件或酒店管理協議或車庫管理協議以及任何貸款方將就本協議或相關事宜籤立的所有其他協議和文書有關的所有同意、批准、命令或授權，均已獲得，並且完全有效，但未能獲得同意不會產生重大不利影響的情況除外。所有證明、許可、執照和批准，包括但不限於每個借款人就當前使用、佔用和運營的抵押財產的合法使用、佔用和運營所需的竣工證書和佔用許可，均已獲得並完全有效，但如不能完全獲得和維持其效力和作用不會構成實質性不利影響的除外。使用
“。在貸款期內，按揭物業的現有及預期用途在所有重要方面均符合(或就預期用途而言，將符合)所有法律規定，包括所有適用的分區條例及規例、建築守則、酒店管理協議、停車場租約、車庫管理協議、所有準許產權負擔及營運協議。酒店物業僅用於酒店用途和其他附屬及相關用途。車庫物業專門用於車庫和零售以及其他附屬和相關用途。他人的陳述、保證和證明
35
49289660

。貸款文件中每一方的陳述、保證和證明都是真實、正確和完整的。
“財務報表和其他信息。到目前爲止，任何貸款方向代理人提交的與貸款有關的所有財務狀況和相關明細表在所有重要方面都是真實、正確和完整的，公平地反映了其主體在各自日期的財務狀況，並已根據GAAP和/或USALI或代理人可能批准的其他方式編制，批准不得被無理扣留、附加條件或拖延。上述最近一份財務狀況表及相關附表所反映的財務狀況自其各自日期以來並無出現重大不利變化。前述財務狀況及相關附表的陳述，或任何信用方或任何信用方的任何關聯公司應代理人、代理人律師或任何其他人士的要求，就與本協議或任何其他貸款文件有關或相關的交易而提供給代理人或代理人的任何證書、報表、文件或資料，或本協議或任何其他貸款文件中的任何陳述或保證，均不包含任何對重大事實的不真實陳述或遺漏陳述所需的重大事實，以使其中所載或本協議所載的陳述不具誤導性。每個貸款方都有能力在到期時償還各自的債務和其他債務，並且每個貸款方都有正的淨資產。
“全面披露。借款人所知的任何貸款方或抵押財產的重大事實或借款人未向代理人披露的抵押品，會對該人的業務、財產、
“合同
“除《經營協議》、《准許的產權負擔》、《總承包商協議》和《建築師合同》外，沒有任何借款人簽訂任何繼續存在的《材料協議》，也不受其約束。每份《材料協議》均具有完全效力，任何借款人在本協議項下不存在任何金錢或其他重大違約，據借款人所知，除本協議任何其他方根據本協議規定的適用通知、補救和評級期限外，不存在任何金錢或其他重大違約。任何借款人、酒店經理、停車場經理或任何其他代表借款人行事的人，均未根據任何重大協議發出或收到任何違約通知，而該通知仍未解決或存在爭議。
“借款人已將材料協議(包括所有修改和補充)的真實、正確和完整的副本交付給代理商。截至截止日期，借款人爲當事一方的合同除與另一借款人或車庫管理協議外，沒有與任何借款人的關聯人員簽訂的合同。
“負債。除准許負債外，借款人目前並無負債或訂立任何債務合約，亦不會就任何債務負任何責任，亦無借款人堅持其信貸可供償還除另一借款人以外的任何其他人士的債務。
36
49289660

“保險單。根據本協議規定必須保存的保險單和其他貸款文件完全有效。
“實用程序和訪問的可用性。爲使用、佔用和運作土地上的改善工程所需的所有公用設施和設施，均位於按揭物業的邊界，包括供水、雨水和衛生污水渠設施、煤氣、電力和電話設施。至少有一條公共道路有直接的物理通道。
“標題：無留置權。酒店費用借款人及車庫費用借款人各自在其各自的按揭物業中擁有良好及可保的費用權益，以及在其各自的改善工程中擁有良好及可保的費用權益，而營運承租人借款人在酒店物業中擁有良好及可保的租賃權益，而在每個情況下，除貸款文件及准許的產權負擔外，不受任何留置權的影響。除貸款文件、租賃和允許的產權負擔外，沒有任何借款人訂立、假定或被轉讓任何類型的合同或安排，如果合同另一方履行該合同或安排會產生針對全部或任何部分抵押品的留置權(擔保尚未拖欠的金額的早期機械師留置權除外)。對任何借款人的任何直接權益或實益權益均不存在留置權。
“遵守法律規定。法律規定，包括分區條例和法規以及建築法規，允許抵押財產
“恢復(截至截止日期的現有用途和根據本項目預期進行的翻新)和本協議擬在事故發生後繼續使用的現有和其他用途，不需要任何差異、特殊例外、特殊使用許可或類似的分區批准。目前並無任何待決或據借款人所知的威脅行動、訴訟或法律程序，以撤銷、扣押、廢止、撤銷或修改現行的條例及規例，或任何已發出並預期於適用項目完成後存在的經營許可證。借款人、抵押財產及其現有用途在所有實質性方面都符合所有法律要求，包括所有適用的分區條例和法規以及適用的建築法規。車庫管理協議
“。車庫管理協議是完全有效的，未被修改、終止、轉讓或以其他方式更改，或放棄其中的規定，除非本協議允許，且此類協議代表協議各方之間關於其標的的完整協議。借款人已向代理商提交真實、正確和完整的車庫管理協議副本和每個借款人的組織文件。根據車庫管理協議或任何准許的產權負擔，並不存在任何借款人或據借款人所知的任何其他人在任何實質方面的失責或不履行，亦不存在因發出通知或時間流逝或兩者兼而有之而構成借款人或據借款人所知的任何其他人根據該等協議而構成失責的事件。據借款人所知，借款人對《車庫管理協議》或任何允許的產權負擔的強制執行不存在任何抵銷、索賠或抗辯。沒有借款人收到《車庫管理協議》規定的重大違約或任何允許的產權負擔的通知。車庫管理協議或任何允許的產權負擔均不包含任何購買抵押財產、抵押品或其任何部分的選擇權或優先購買權。安全文檔
“。爲了代理人自身和貸款人的利益，每份擔保文件的條款都有效地對其中所述的所有抵押品建立了合法、有效和可強制執行的留置權或擔保權益，當適當的記錄和檔案在公職人員中完成時，每份擔保文件將構成對其中所述抵押品的所有權利、所有權、不動產和權益的完善的留置權和擔保權益，優先於和優於所有其他留置權，貸款文件允許的除外。意外事故和奪取
“。抵押財產的任何部分均未發生尚未恢復的傷亡事故。任何抵押財產的任何部分的沒收，或任何與抵押財產相鄰的街道或道路的修改、重新排列或重新安置，或拒絕從任何接入點(公共或私人)進入抵押財產，都沒有發生，也沒有懸而未決，或者借款人知道的情況受到威脅。運營協議
37
49289660

。每份經營協議均具有十足效力，借款人或據借款人所知，任何經營協議的任何其他一方均無違約，而據借款人所知，並無因時間流逝或發出通知或兩者兼而有之而構成違約的條件。
“侵佔。除測量圖所示外，任何土地改善工程(I)不得侵佔任何建築物界線、收窄界線、邊院界線、任何准許產權負擔或任何其他已記錄的地役權，或任何借款人知悉或有理由相信可能存在的任何可見地役權或其他地役權，但下列侵佔情況除外：
“外國人。借款人不是守則第1445或7701節所指的「外國人」。.
“控制人。任何借款人都不是借款人，對任何借款人擁有「控制權」(該詞在美國法典第12編第3750億節或據此頒佈的條例中有定義)的任何人都不是貸款人的「高管」、「董事」或「直接、間接或與一人或多人共同擁有、控制或有權對任何類別有投票權的證券投票超過10%(10%)的人」(這些術語在「美國法典」第12編第3750億節或依據其頒佈的法規中有定義)。任何貸款人爲其附屬公司的銀行控股公司，或任何貸款人爲其附屬公司的銀行控股公司的任何其他附屬公司。政府監管, 。任何借款人都不是1940年《投資公司法》所指的「投資公司」或「投資公司」控制的公司。借款人不得主要從事或作爲其重要活動之一，從事爲「購買或攜帶任何按金股票」的目的而提供或安排提供信貸的業務，這是理事會第U條所指的。任何借款人的資產的任何部分均不包括任何該等按金股票，而貸款收益的任何部分不得用於購買或持有上述規例所指的任何該等按金股票，或爲此目的而向他人提供信貸。ERISA。任何借款人或任何ERISA附屬公司均未招致任何責任，據借款人所知，未發生任何可合理預期導致其產生任何責任的行動或事件，(A)針對任何養老金計劃，包括根據守則第412節或ERISA第四章規定的任何責任，或(B)根據ERISA第4201節就任何多僱主計劃因「完全撤回」(符合ERISA第4203節的含義)或「部分撤回」(符合ERISA第4205節的含義)或(C)因任何多僱主計劃的未繳供款而招致任何法律責任。借款人並未參與任何交易，而該交易可能會被處以根據《僱員補償及補償條例》第502(I)節的規定評估的實質性民事罰款或根據《守則》第4975節的規定徵收的實質性稅收。任何借款人的資產均不被視爲受《僱員福利計劃》(ERISA第3(3)節)標題第I項或《計劃》(第4975(E)(1)節所指的《美國勞工部條例》第29 CFR第(2510.3-101)節)所規定的《僱員福利計劃》(《僱員福利計劃》第3(3)節所指)的「計劃資產」。, 計劃資產“)或ERISA第3條第(42)款。
“勞工與就業。對於物業內的任何工會或任何其他勞工組織或員工代表，或因任何集體談判協議而產生或根據任何集體談判協議合理地可能產生重大不利影響的投訴或指控、勞工仲裁、申訴、糾紛或爭議，均不存在懸而未決或受到威脅的不公平勞動行爲投訴或指控、勞工仲裁、申訴、糾紛或爭議。據借款人所知，沒有懸而未決或受到威脅的組織活動，或者，除了正在進行的延長地方39 CBA的談判之外，任何工會或其他勞工組織或員工團體要求進行集體談判。沒有罷工、停工、手工記賬、糾察或停工存在，或者，據借款人所知，沒有受到威脅，這有可能產生實質性的不利影響。集體談判協議完全有效，借款人及據借款人所知，酒店經理及其關聯公司(視情況而定)在所有重要方面均遵守集體談判協議的條款、條件及義務。貸款文件所考慮的交易或進入貸款文件均不會構成違反或違約任何集體談判協議或
“名稱；主要營業地點
“。借款人既不使用也不會使用任何商品名稱，也沒有也不會使用本文所列借款人實際名稱以外的任何名稱開展業務。每個借款人的主要營業地點和首席執行官辦公室現在和將來都將保持與本協議第一段所述的一致。每個借款人的組織標識編號如下：酒店費用借款人-4961258，經營性承租人借款人-4961254，車庫費借款人-4961085。
“不存在任何人對借款人使用所有適用的專利、商標、版權、技術、訣竅和程序的權利提出異議或質疑，這些專利、商標、版權、技術、訣竅和程序基本上是以預期的進行和運營的方式進行業務和抵押財產的運營所必需的。沒有任何索賠，據借款人所知，任何借款人使用此類專利、服務商標、商標、版權、技術、訣竅和程序，都不會侵犯任何人的權利。借款人不知道任何第三方侵犯了借款人在其任何知識產權上的任何權利。任何與按揭財產或其任何部分或業務有關的名稱或標誌，均不是任何借款人的註冊服務商標、商號或商標。借款人的目的。每一借款人在合約期內一直是、現在是、將來也將一直是特殊目的破產的遠離實體，其唯一目的過去、現在和將來都是收購、擁有、持有、建造、經營、管理、開發、營銷、融資、租賃、維護或出售以及以其他方式處理抵押財產。每個借款人的成立目的是爲了將借款人的成員(S)按照下列規定向該借款人提供的股權資本進行投資附表II附於此。每個借款人過去、現在和將來都是爲了投資該借款人的成員向該借款人提供的股權資本而組織的，但每個借款人過去、現在和將來都沒有、現在和將來都不會參與籌集股權資本。洪泛區。抵押財產或其任何部分都不在住房和城市發展部長或其他官員指定或確定爲具有特殊洪水危險的區域內，該區域由聯邦或州法律不時授權根據1968年《國家洪水保險法》或根據任何其他國家、州、縣或市防洪計劃指定或識別爲具有特殊洪水危險的區域，或如果位於該區域，則根據第5.11(A)(I)(A)條
38
49289660

“本協議對財產具有十足的效力。稅費
“。就美國聯邦所得稅而言，每個借款人在任何時候都被視爲一個實體，被視爲獨立於其唯一所有者的實體，如財政部法規301.7701-3(B)(1)(Ii)節所定義。任何人不得采取與該分類不符的任何行動。每個借款人都已提交或促使提交了其要求提交的所有美國聯邦、州、地方和非美國納稅申報單、報告和其他與稅務有關的文件，並已支付了除尚未拖欠的稅款外的所有應繳稅款。每個借款人都在其賬面上建立了一貫適用的穩健會計原則所要求的與所有財政期間的稅項有關的費用、應計項目和準備金。每一借款人認爲其納稅申報表(如有)正確地反映了借款人在其所涉期間的收入和納稅情況。並無就按揭物業(或其任何部分)作出任何建議評稅，或據借款人所知，該等評稅有任何重大基礎，亦未向代理人披露。爲徵收房地產稅，抵押財產應與所有其他相鄰土地分開評估。目的可以作爲一個獨立的包裹處理。據借款人所知，該房產目前沒有任何減稅計劃，而且從來沒有受益過。
不利合同
. 任何借款人都不屬於任何合同或協議的一方，也不受任何章程或其他限制的約束，這對其業務、財產、資產、運營、整體狀況（財務或其他）或其履行本協議或任何其他貸款文件項下義務的能力產生重大不利影響。
不利索賠
。借款人對全部或任何部分抵押財產或其他抵押品的所有權不存在任何不利要求。
信譽
。(I)借款人及擔保人均有能力在到期時償還各自的債務及其他債務，及(Ii)擔保人有能力履行擔保人財務契諾。
39
49289660

。財產的任何部分已經或將不會用任何非法活動的收益購買，財產中沒有任何非法商業活動或與受控物質有關的商業活動(包括但不限於爲商業目的、醫療或其他目的種植、分發和/或分發大麻)，條件是上述陳述應符合借款人對借款人及其附屬公司以外的任何人的了解。該貸款是一項僅爲借款人經營業務而按規定金額進行的商業貸款交易，貸款所得款項不得用於個人、家庭、家庭或農業用途。任何借款人或其任何關聯公司從來沒有、也永遠不會實施任何行爲或不作爲，使聯邦政府或任何州或地方政府有權沒收財產或其任何部分，或因履行借款人在本協議、票據、抵押貸款或其他貸款文件下的義務而支付的任何款項(借款人應盡商業上合理的努力，以確保其他人永遠不會實施)。每個借款人在此承諾並同意不承擔、允許或容受任何給予這種沒收權利的作爲或不作爲的存在。
身體狀況
。除財產狀況報告中所述外，抵押財產，包括但不限於所有建築物、裝修、停車設施、人行道、雨水排放系統、屋頂、管道系統、暖通空調系統、消防系統、電氣系統、設備、電梯、外牆和門、環境美化、灌溉系統和所有結構部件，在所有物質方面都處於良好狀態、秩序和維修，合理的損耗除外。按揭財產本身或其本身並無結構性或其他重大缺陷或損害，不論是否潛在，亦無任何借款人收到任何保險或保證公司的書面通知，指出按揭財產或其任何部分有任何缺陷或不足之處，以致對其可保險性造成不利影響，或導致對其徵收額外保費或收費，或終止或威脅終止任何保險單或債券。
不依賴代理人或貸款人。每名借款人及擔保人均爲房地產的老練業主、經營者、開發商、管理人及投資者，其訂立貸款文件的決定乃基於其本身對貸款文件的條款、契諾、條件及規定，以及借款人及有關各方認爲相關的其他事項、材料及市況及準則所作的獨立專家評估。任何借款人或擔保人在簽訂本協議、貸款或其他貸款文件時，均不依賴代理人或任何貸款人或其各自的代表、僱員、關聯公司或代理人提供的任何口頭或書面信息、陳述、擔保或契約，但代理人和貸款人的陳述和擔保(如有)除外在這裏。每個借款人還承認，除本協議和其他貸款文件中明確包含的內容外，沒有任何員工、代理人或代理人或任何貸款人被授權作出任何聲明、陳述、保證或契諾，也沒有任何借款人或任何擔保人依賴這些聲明、陳述、保證或契諾。在不限制前述規定的情況下，每名借款人承認代理人及貸款人並無就貸款或按揭財產(包括按揭財產的現金流、其價值、適銷性、狀況或未來表現、租約的存在、狀況、充分性或充分性、按揭財產的租賃或佔用情況，或按揭財產的現金流是否足夠)作出任何陳述或保證，以支付根據貸款不時到期的所有款項。
償付能力/欺詐性轉讓
。借款人(A)已達成本協議或任何貸款文件所設想的交易，但並無妨礙、拖延或欺詐任何債權人的實際意圖，以及(B)已收到合理等值以換取其在貸款文件下的義務。在貸款生效後，借款人資產的公平可出售價值超過並將在貸款發放後立即超過借款人的總負債，包括但不限於次級負債、未清算負債、有爭議負債和或有負債。借款人資產的公允可出售價值在作出貸款後立即並將大於該等借款人可能各自的負債。借款人的資產不會，亦不會在作出貸款後立即構成不合理的小額資本，以進行或建議進行其各自的業務，而借款人並不打算亦不相信會在債務及負債(包括或有負債及其他承擔)到期時，引致超出其償還能力的債務及負債(考慮到借款人將收到現金的時間及數額，以及就其債務應支付的款額)。
組織結構圖
“。組織結構圖作爲附件附表I
40
49289660

“與借款人、某些關聯方和其他方有關的，在本合同日期並在此日期是真實和正確的。租賃
“。本文件所附租金登記表如下附表VI在所有重要方面是真實、完整和正確的，並反映任何借款人在所有重要方面同意的任何租約修改、豁免或延期的條款，並且截至本合同日期(或未來，截至未來重新作出陳述的日期)，該物業不受下列所述租約以外的任何租賃的約束
“附表VI。其中一個借款人是業主在租賃中的權益的擁有者和出租人。除根據及依據租契的規定外，任何人士對該物業並無任何管有權益或佔有該物業的權利。但在本文件所附租金名冊上列明的除外
“附表VI最近交付的季度租賃報告，或在與貸款結束有關的任何禁止反言證書中提供的，截至本合同日期：(I)租賃完全有效，適用的借款人沒有違約，或者據借款人所知，另一方在任何適用的通知或治癒期限之後沒有違約，據借款人所知，不存在隨着時間的推移或通知的發出或兩者都構成違約的條件，(Ii)提交給代理人的租約副本是借款人所擁有的租約的真實和完整的副本，並且沒有任何口頭協議，(Iii)任何租約項下的租金(不包括按金)沒有在到期日之前超過一(1)個月支付，(Iv)適用的借款人在每份租約項下進行的所有工作都已按要求在所有實質性方面完成，並已被適用的承租人接受，(V)任何付款、免租金、部分租金、租金回扣或其他付款、信用、任何借款人須給予任何承租人的免稅額或扣除額，該承租人已收到；。(Vi)租契下的承租人已接受管有及實際佔用其各自的所有租出物業，並已開始根據租約全數支付租金；。借款人已向代理人提交一份真實、正確和完整的清單，列明承租人在物業中支付的所有尚未動用的抵押按金(包括其應計利息)，所有這些按金均由任何借款人根據適用租約的條款和適用的法律要求持有，(Viii)任何租約(或任何分租約)下的承租人均不是任何借款人或擔保人的附屬公司，(Ix)據借款人所知，租約下的承租人開放營業並全額支付，租金未減，且無承租人要求終止其物業業務或已在其租賃物業的全部或主要部分「停業」(或已書面通知任何借款人有意停業)，(X)並無與租賃物業空間租賃有關的經紀手續費或佣金，且該等費用或佣金日後將不會因租賃而到期或支付，包括因延長租期或擴大租賃空間，(Xi)故意留白，(十二)借款人所知，承租人不得(A)針對支付其租賃項下的任何租金或其他金額或履行其租賃項下的任何其他義務提出任何抗辯，或(B)尋求或發出通知(無論是書面或口頭的)，表明其打算就支付其租賃項下的任何租金或其他金額或履行其租賃項下的任何其他義務尋求任何救濟或其他優惠，以及(Xiii)除向代理人披露的情況外，目前沒有借款人正在與任何承租人討論或談判(直接或間接)，也沒有承租人以書面要求對租賃進行任何重大修訂或修改(包括但不限於，在租金或租金期限或根據該等條款到期的任何其他款額方面的任何減收、延期或寬免)。任何租約下的承租人均無權根據該租約或其他條款購買全部或任何部分租賃物業或租賃物業所屬建築物的全部或任何部分。本公司並無就任何仍然有效的租賃或收取的租金作出任何事先出售、轉讓或轉讓、質押或質押。酒店
“根據現行酒店管理協議，酒店經理以酒店經理所控制的名稱及/或酒店系統經營酒店，該協議具有十足效力，任何借款人並無根據該協議發生金錢或其他重大違約，而據借款人所知，任何其他訂約方亦不會根據該協議發生金錢或其他重大違約。貸款文件的簽署和交付以及借款人在貸款文件下的表現都不會對借款人在《酒店管理協議》下的權利產生不利影響。除酒店管理協議、車庫管理協議、准許產權負擔及任何其他重大協議外，並無借款人爲訂約方的其他重大協議與酒店的管理及其營運有關。酒店經理是酒店所有員工的僱主。沒有借款人擁有或僱用任何員工。除集體談判協議外，任何借款人或酒店經理均不是與酒店財產有關的任何集體談判或其他勞動協議的一方或受制於任何其他勞動協議。除工會外，沒有工會或任何其他組織或員工代表代表酒店物業的任何員工。據借款人所知，不存在與任何工會或任何其他勞工組織或員工代表的待決或威脅的不公平勞動行爲投訴或指控、勞工仲裁、申訴、糾紛或爭議，或因任何集體談判協議引起或根據任何集體談判協議而產生的合理可能產生重大不利影響的投訴或爭議；也不存在懸而未決的或據借款人所知的關於酒店物業的威脅罷工、停工、手工記賬、糾察或停工。借款人應在發生或威脅發生前一句中所述的任何事項，或借款人知悉的任何組織活動或集體談判要求時，或在交付或收到關於任何集體談判協議項下任何實質性違反或違約的通知或通信後，立即通知代理人。
“故意留空的。借款人或酒店經理合法使用、佔用和經營酒店物業作爲酒店和餐廳所需的所有酒類許可證均已獲得，並完全有效。截至截止日期，所有酒類許可證均以喜來登酒店經理或喜來登酒店經理的「dba」名義持有。第四條現金管理
“借款人應並應促使停車場經理產生淨停車收入，並促使車庫經理產生所有車庫收入(可分配給車庫內停車的收入除外)，並應促使與車庫費用借款人、車庫經理或停車場經理簽訂商家或其他信用卡協議的每家信用卡公司(統稱爲，「)根據該商戶的協議或其他規定，該等信用卡公司就車庫物業支付的所有收入(減去根據該信用卡公司各自的信用卡協議而欠該信用卡公司的任何手續費)，以及從車庫費用借款人、車庫經理或停車場經理那裏收到的所有款項將直接轉入一個信託帳戶(」
““)由借款人設立和維持，在結算帳戶協議中有更全面的描述。
“只要現有《酒店管理協議》及/或《2025年酒店管理協議》仍然有效，借款人應並應安排喜來登酒店經理將可分配給酒店費用借款人及/或營運承租人借款人的所有營運利潤(定義見現有《酒店管理協議》及《2025年酒店管理協議》)直接轉入結算帳戶。第四條
41
49289660

以及代理人要求的現金管理協議，使所有酒店收入直接存入結算帳戶。借款人應真誠地配合代理人的努力，使酒店經理FF&E儲備金中的資金存入代理人控制的帳戶，根據持有此類資金的託管銀行、酒店經理、經營承租人借款人、酒店費用借款人和代理人之間的帳戶協議，以代理人合理接受的形式和實質。結算銀行應按日將存入結算帳戶的資金劃入現金管理帳戶，並根據本協定予以運用和支付。除其他事項外，《結算帳戶協議》應管理向結算帳戶存入資金和從該帳戶提取資金，該結算帳戶應由代理人獨家管轄和控制，以及《結算帳戶協議》應包含借款人向清算行發出的不可撤銷的指示，以及清算行的協議，即只遵守代理人關於清算帳戶的指示(代理人同意根據本協議的條款提供
“第四條)及不理會借款人或任何其他人士(除非代理人根據本協議另有指示外)作出的任何及所有從結算帳戶提款的命令。借款人不得開立、致使或允許任何其他人(包括車庫經理或酒店經理)開立或維持除結算帳戶、根據現有酒店管理協議和/或2025年酒店管理協議設立的帳戶和/或根據停車場租賃設立的帳戶以外的任何與收入收存有關的帳戶。
“借款人特此確認借款人已設立，自截止日期起及之後，借款人應在帳戶銀行開立一個營運帳戶(統稱爲營業帳目“)，該經營帳戶應是適用借款人名下的獨立合格帳戶。根據以下規定須支付給借款人的任何款項第2.1.2節
“和/或第4.4(A)(Vi)條
“應由代理人存入經營帳戶，只要當時沒有違約事件繼續發生，則可根據本協議和其他貸款文件的條款，在借款人的指示下進一步支付。借款人特此確認，在簽署《現金管理協議》的同時，根據該《現金管理協議》的條款，借款人將在現金管理銀行設立一個現金管理帳戶，並在該帳戶設立後，作爲根據本協議從結算帳戶轉賬或以其他方式要求存入該帳戶的所有款項的儲存庫。現金管理帳戶“)，該現金管理帳戶應爲借款人名下的獨立合格帳戶，用於代理作爲擔保方的利益，並應命名如下：DBAG TSS信託責任帳戶(或經代理批准的其他名稱)。除其他事項外，《現金管理協議》應管理現金管理帳戶的資金存入和提取，該現金管理帳戶應由代理人獨家管轄和控制，並且《現金管理協議》應包含借款人對現金管理銀行的不可撤銷的指示，以及現金管理銀行的協議，即僅遵循代理人關於現金管理帳戶的指示(代理人同意根據本協議的條款提供
“第四條)並不理會借款人或任何其他人士發出或指示從現金管理帳戶提款的任何及所有命令。借款人還確認現金管理帳戶的以下子帳戶(每個子帳戶爲
“子帳戶總而言之，
“第4.4節並按中規定的方式應用第4.5條A與覈准資本/財務及設備支出有關的子帳戶(“
“財務與設備儲備子帳戶“)。應根據第4.9(A)節的規定將款項存入財務與設備儲備子帳戶，並按第4.9(B)節的規定使用。
42
49289660

“存放關鍵貨幣的子帳戶(“關鍵貨幣儲備子帳戶
““)。應按照以下規定將款項存入關鍵貨幣儲備子帳戶第4.8(A)條
“並按中規定的方式應用第4.8(B)條
“季節性儲備子帳戶“)。.
“第4.13(A)條並按中規定的方式應用
“第4.13(B)條。
“第4.1(A)條，要求(X)車庫費用借款人將所有車庫收入(停車場管理人收取的車庫收入除外)存入，並促使停車場管理人在收到後兩(2)個營業日內將任何和所有停車淨收入直接存入現金管理帳戶(而不是結算帳戶)，並指示所有承租人和其他有義務向車庫費用借款人的帳戶或其帳戶或其利益支付車庫收入的人，如有可能，直接通過電匯方式將該金額直接存入現金管理帳戶(而不是結算帳戶)和(Y)酒店費用借款人和經營承租人將其收到的所有酒店收入存入現金管理帳戶(而不是結算帳戶)。並促使酒店經理在收到後兩(2)個工作日內將「業主利潤」(該術語在酒店管理協議中定義)直接存入現金管理帳戶(而不是結算帳戶)。
“抵押品帳戶「。」抵押品帳戶和存入其中的資金及其應計利息應作爲貸款的額外擔保。就聯邦所得稅而言，借款人應爲抵押品帳戶的實益所有人(但不是
“否則)，並應報告本協定項下抵押品帳戶中持有的所有金額的所有收入。抵押品帳戶上所有債務全額清償後剩餘的資金，應當退還給借款人。如果《現金管理協議》規定，現金管理銀行在收到代理人的通知後，方可將抵押品帳戶中的任何資金返還給借款人，則代理人應應借款人的要求，在全額償付所有債務後，立即向現金管理銀行發出書面通知，並指示將所有此類資金髮放給借款人。
“帳戶抵押品質押爲確保按時足額付款和履行債務，每個借款人特此爲貸款人的利益向代理人轉讓、授予擔保權益並向其質押以下各項的優先持續擔保權益，不論其現已擁有或現有，或以後獲得或產生，且不論位於何處(全部相同，統稱爲
“帳戶抵押品
43
49289660

就上述任何一項或全部而不時收取、應收或以其他方式支付的所有利息、股息、現金、票據及其他財產；及
“在上文第(1)或(2)款未涵蓋的範圍內，上述任何或所有項目的所有「收益」(根據UCC的定義)。除本合同規定的權利和補救措施外，代理人應在法律上或衡平法上享有與帳戶抵押品有關的所有權利和補救措施，包括但不限於受擔保當事人在《合同法》下的權利，就像此等權利和補救措施在本合同中已得到充分闡述一樣。
“就《統一商法典》和其他適用法律而言，本協議應構成擔保協議。爲完善根據本協議授予的帳戶抵押品擔保權益，借款人應在截止日期或之前簽署帳戶協議並將其交付給代理人。保留
“來自現金管理帳戶的支出如果沒有違約事件發生且仍在繼續，代理人應在每個付款日授權現金管理銀行按下列優先順序從現金管理帳戶轉賬，轉賬範圍如下：
存入財務及設備儲備子帳戶，當時需要存入其中的金額爲
第4.9條
至(A)(Vi)
上述金額應少於支付下列各項所需款項的金額
第4.4(A)(I)至(A)(Vi)條
以上，借款人應在付款日向現金管理帳戶存入
44
49289660

這種不足的數量。如果借款人未能繳交按金，則構成違約事件，但須遵守並符合第7.1節此外，除貸款文件規定的所有其他權利和補救措施外，代理人可按代理人自行決定的順序和優先順序，就債務支付和運用現金管理帳戶中的金額。(vi)現金流量儲備子帳戶淨值
“在現金清償期間，如果違約事件沒有繼續發生，存放在現金流量淨儲備子帳戶中的所有款項應作爲貸款的額外抵押品持有，直到根據下文第(B)或(C)款(視適用情況而定)使用爲止。在違約事件持續期間，代理人可持有、運用和支付中規定的任何此類資金
“第4.4(B)條但在現金清算期終止後，如無貨幣違約或重大非貨幣違約(代理人已發出通知)，則當時存入現金流量儲備子帳戶的所有款項(不包括使現金清算期終止所需的債務收益率所需的金額，因不再有此需要，應按照本句匯出)匯入營運帳戶。此外，在現金清掃期間的任何時候，只要不存在違約事件，借款人可以書面要求貸款人將當時存入淨現金流量儲備子帳戶的金額用於(X)償還未償還本金餘額，償還應根據
“第2.4條在此，；
“但前提是借款人只需在還款前五(5)個工作日向代理商發出書面通知，還款日期應爲付款日，條件爲
“第2.4(B)(1)條不需要滿足的)，或(Y)任何緊急維修、資本支出、批准的翻修/PIP費用、財務和設備支出或費用或運營費用，只要與批准的預算一致。這種支出不應妨礙隨後開始現金清算期，並將金額存入子帳戶(包括現金流量淨儲備子帳戶)，如下所述
“第4.4(A)條稅收和保險儲備子帳戶
“借款人應在截止日期(X)向稅務和保險儲備子帳戶(X)存入相當於123,920.23美元的金額，並在此後的每個付款日(Y)存入相當於以下金額的金額：代理人合理估計的在接下來的十二(12)個月內應繳納的物業稅的十二分之一(1/12)(酒店經理就酒店財產支付的物業稅除外)，加上
“代理人合理估計在接下來的十二(12)個月內應支付的保險費的十二分之一(1/12)(酒店經理就酒店財產獲得的保險的保險費除外)；以便積累足夠的資金，至少在各自的到期日之前三十(30)天支付所有此類財產稅和保險費。如果在任何時候，稅收和保險儲備子帳戶中的金額不足以累積(在按照本條款支付後續的每月金額時)該等財產稅和保險費的所有分期付款的全部金額，則代理人應至少在各自的財產稅和保險費到期日之前十(10)個工作日通知借款人，如適用，則每月支付給稅收和保險儲備子帳戶的金額應增加代理人合理估計的足以彌補該不足的金額；
“如果借款人在財產稅或保險費到期前十(10)天收到任何欠款通知，借款人將在收到通知後兩(2)個工作日內向代理人或其代表存入該金額。借款人收到抵押財產後，應立即向代理人提供與抵押財產有關的所有稅單和保險單的複印件。全額清償債務後，稅收和保險儲備子帳戶中的任何資金均應退還給借款人。
“即使有任何相反的規定，第4.6(A)條，在可接受的一攬子保單對下列要求的保險單有效的情況下.
“第5.11節，前提是(X)沒有違約事件發生且仍在繼續，以及(Y)與該可接受的一攬子保單相關的所有應支付的保險費已在適用期限開始前一(1)年內預付，並存入稅務和保險儲備子帳戶，以根據
“對於與該可接受的一攬子保單相關的保險費，上述保費將被暫停。截至截止日期，可接受的一攬子保單對於截止日期所要求的保險單有效
第5.11節
45
49289660

故意省略
關鍵貨幣儲備子帳戶
關鍵貨幣基金的存放
。借款人應指示喜來登酒店經理將全部或部分關鍵資金直接支付到現金管理帳戶，並將金額轉入關鍵貨幣儲備子帳戶。
年度財務報表
“。在實際可行的情況下，但無論如何，在該借款人的每個財政年度結束後130天內，該借款人在該期間的未經審計的財務報表，其中應(V)包括資產負債表、經營報表(收入和支出)、現金流量表、或有負債表、成員或合夥人資本變動表(視情況而定)以及代理人合理要求的與該借款人有關的任何其他財務信息，(W)根據公認會計准則和/或《美國財務會計準則》編制並根據公認會計准則對賬，(X)採用代理人合理接受的形式；及(Y)經借款人的行政總裁、營運人員或財務人員核證爲真實、正確及完整。儘管有上述規定，每個借款人同意提供該借款人的經審計財務報表(在本協議規定的時間範圍內(A)條
“)如果代理人或貸款人就二級市場交易提出要求。季度財務報表
“。在實際可行的情況下，但無論如何，在該借款人的每個日曆季度結束後六十(60)天內，該借款人在該期間的未經審計的財務報表，應(W)應包括資產負債表、經營報表(收入和支出)、現金流量表、或有負債表、成員或合夥人資本變動表(視情況而定)以及代理人合理要求的與該借款人有關的任何其他財務信息，(X)應根據GAAP和/或USALI編制並根據GAAP(如適用)進行對賬。(Y)須採用代理人合理接受的形式，及(Z)須由借款人成員的高級人員證明在所有重要方面均屬真實、正確及完整。
在實際可行的情況下，但無論如何不遲於每個日曆季度結束後三十(30)天：(I)一份列出任何租約拖欠情況的報告，每一份報告應由借款人成員的一名官員證明在所有重要方面都是真實、正確和完整的；(Ii)一份報告，列出借款人提前一(1)個月以上接受租金的每個承租人的身份以及借款人接受的租金金額；(Iii)一份關於終止租約的狀況報告；(V)開業日期和合租時間表；(Vi)上一個日曆季度在其適用空間內入住的租戶的時間表(第(I)至(Vi)款所述的時間表和報告在本文中稱爲“
46
49289660

季度租賃報告
“)及(Vii)令代理商合理滿意的租金登記冊或更新後的租金登記冊(視屬何情況而定)，以及當時進行的所有租賃活動的摘要，包括所有租賃談判的狀況。
借款人、擔保人、酒店經理或其任何關聯公司在該季度內收到的有關酒店(1)收到的低質量或客戶滿意度評級、調查或報告、(2)不符合酒店經理的品牌標準或(3)未通過任何特許經營和/或管理檢查報告或任何類似通知的任何通知。
合規證書
“。在切實可行的範圍內，但無論如何不遲於每個日曆季度結束後六十(60)天，由借款人的一名官員簽署的證書，說明該個人已對該借款人在該日曆季度內的活動和抵押財產進行了審查，並盡其所知和所信，經過合理和適當的調查，(I)截至該證書的日期沒有發生任何金錢違約或違約事件，或(Ii)據該人所知，沒有違約，根據任何管理協議、酒店管理協議或任何租賃發生的條款、條款或契諾的未能履行或終止事件，如果有效，則合理地很可能產生重大不利影響，且該借款人沒有收到任何通知，表明任何該等文件的任何一方已就任何違約、終止或意圖終止的通知提出質疑或拒絕其有效性或可執行性，或指明其性質和狀況；及(Iii)對於該借款人、抵押財產或任何抵押品，並無合理地可能產生重大不利影響的訴訟、調解或仲裁待決，或(如有任何該等訴訟、調解或仲裁，或正在等待仲裁，具體說明其性質和狀態。政府當局發出的通知
“。任何政府主管當局收到與按揭財產或其任何部分有關的任何正式通知、申索或投訴的相同、真實及完整的副本，或該借款人根據任何許可產權負擔而享有的合理可能具有重大不利影響的權利，包括來自公共當局的任何關於任何稅務或特別評稅的通知，或任何指稱違反任何影響按揭財產任何部分的分區條例、限制性契諾、消防條例、建築守則條文或其他法律規定的通知，以及任何影響或威脅影響按揭財產任何部分的任何徵用或其他徵用權訴訟或法律程序的通知，應立即通知有關當局。年度預算；業務計劃
“在每個財政年度結束前三十(30)天內，應儘快提供下一財政年度擬議年度預算的副本，只要現金清算期未生效，該副本應僅供參考，如果現金清算期當時有效，則該年度預算應要求代理人事先書面批准，批准不得無理扣留或推遲(前提是，就酒店物業而言，只要《酒店管理協議》有效，只有在經營承租人借款人和/或酒店費用借款人有權批准任何此類預算的範圍內，代理商才有權批准年度預算)(經代理商批准或根據本條款(F)被視爲批准的年度預算(如果需要批准)，並根據本條款的規定進行修改，批准的年度預算“)。在收到代理人對年度預算的批准後(或在年度預算被視爲批准或以其他方式創建的情況下)，每個借款人應向代理人提交一份批准的年度預算副本，該副本應由借款人認證爲適用財政年度的核準年度預算。代理商確認並同意，在截止日期或之前，每個借款人向代理商提交2024年年度預算餘額和2025年年度預算，作爲本合同附件
“附表IV”, “，代理人已將其批准爲初始「批准的年度預算」。此外，儘管本文件中有任何相反的規定部分，一旦簽訂替代酒店管理協議，酒店費用借款人應向代理商提交當時適用年度剩餘時間的最新年度預算，該年度預算應要求代理商事先書面批准，批准不得無理扣留、附加條件或拖延(出於強調的目的，無論現金清算期是否有效，都應要求獲得批准)。根據本協議，在年度預算需要代理人事先批准的任何時候，在代理人批准提議的年度預算(或提議的年度預算被視爲批准)之前，實際已批准或被代理人視爲批准的最近批准的年度預算應適用於下一財政年度，借款人可根據本第5.1(F)條。一旦發生現金清算期，在現金清算期繼續期間，應貸款人的要求，每個借款人應按季度提交更新的年度預算(或促使酒店經理準備交付給代理商)，該更新的年度預算須經代理商批准，批准不得無理扣留或拖延(但就酒店物業而言，只要《酒店管理協議》有效，代理商僅在經營承租人借款人和/或酒店費用借款人有權批准任何此類預算的範圍內才有權批准年度預算)。對於每個已批准的年度預算，借款人應被允許在未經代理人事先審查或批准的情況下修改該已覈准的年度預算，以對任何此類已覈准的年度預算中的預算項目進行更改(I)以說明稅收、保險費和公用事業費用的增加，以及(Ii)將任何此類預算項目增加至多10%(10%)；但在任何情況下，根據第(Ii)條進行的所有此類更改的總額在任何情況下均不得導致超過最近一次已批准的年度預算中規定的總額的5%(5%)的增長。如果任何借款人未能在規定的期限內提供本條(F)項所要求的信息，除非該借款人在收到代理人的書面通知後三十(30)天內未能提供此類信息，否則不構成違約事件。除第(F)款明確規定外，借款人不得修改任何已批准的年度預算，除非該修改的副本在其生效前至少二十(20)天交付給代理商，並得到代理商的批准，該批准不得被無理地扣留、附加條件或拖延。此外，每個借款人應在任何新的、修改或更新的年度預算生效後二十(20)天內提交一份副本。每一份批准年度預算或修改年度預算的請求應在封面頂部用大寫黑體字標明：“
47
49289660

“這是對年度預算或年度預算修改的同意請求。工程師需要在十(10)個工作日內做出回應。如果代理商未能在此期限內作出回應，則視爲已獲得代理商的批准“
“提供然而，只要本協議項下的「代理人」是德意志銀行或其關聯公司之一，則不應視爲本協議項下的批准第5.1(F)條
“，以及根據本協議需要代理人同意的任何年度預算應獲得德意志銀行或其適用關聯公司的實際同意。在拒絕同意的情況下，代理人應說明理由。借款人發出的通知。以下通知：在任何借款人得知後，在所有涉及借款人、任何其他信貸方或抵押財產(或其任何部分)的訴訟和政府當局的所有訴訟程序中，立即作出任何重大裁定；
“一旦發生(X)本協議或任何其他貸款文件中陳述或擔保的任何重大事實或情況的任何實質性變化，以及可能對任何貸方、抵押財產(或其任何部分)的運營或任何其他抵押品的所有權產生重大幹擾或不利影響的任何其他事實或情況的任何實質性變化，以及(Y)任何可能無法在違約發生後三十(30)天內得到補救的違約以及任何違約事件，應立即予以處理；在事件發生後五(5)個工作日內，任何借款人的任何重大債務加速；
“借款人或擔保人名稱變更或會計年度變更發生後十(10)個工作日內；在事件發生後十(10)個工作日內，任何信用證方的任何組織文件的任何重大修改的複印件；
“在交付後五(5)個工作日內，根據借款人的組織文件發送或接收的任何重要通知的副本；任何人收到或交付通知，或任何借款人實際知道任何人未履行其在允許的產權負擔、任何重大協議、任何管理協議或任何其他重大協議、合同或其他文書項下的義務，而該借款人是該等協議、合同或其他文書的一方或其任何財產受其約束，而該等合約或文書合理地可能會產生重大不利影響；在收到任何人的通知後五(5)個工作日內，針對或影響任何借款人、抵押財產、任何抵押品或保證債務的任何抵押品或留置權的任何訴訟、法律程序或任何重大不利索賠，如果不利確定，將有可能產生重大不利影響；
“在事件發生後十(10)個工作日內，任何火災或其他傷亡或抵押財產的任何部分被盜；借款人根據重大租賃對任何承租人提起的任何房東/租客訴訟或針對任何承租人的任何其他重大房東/租客訴訟開始後立即發生；
“在任何借款人知道後十(10)個工作日內，(Y)任何借款人產生任何負債的通知，或任何可合理預期導致借款人承擔任何責任的事件或行動的發生，(1)關於任何養老金計劃，包括根據守則第412節或ERISA第四章規定的任何責任，或(2)由於部分或全部從任何多僱主計劃中提取(此類術語分別在ERISA第4203和4205節中定義)或因終止或終止或任何此類多僱主計劃的破產，或(Z)借款人從事的任何交易可合理地預計將受到根據ERISA第502(I)節評估的重大民事罰款或根據法典第4975節徵收的物質稅，該通知應包括借款人從國稅局、PBGC或美國勞工部收到或向其提交的關於此類事件的任何報告或通知的副本，或在未收到或提交此類書面報告或通知的情況下對其描述；有關合約的通知.
“。借款人應將任何材料協議中的任何重大更改通知代理商。如果任何重要協議在到期或終止時沒有續簽或被類似協議取代，借款人應通知代理人，並應在通知中詳細說明終止、不續簽和不更換的原因。實質性的不利影響一般。對於任何借款人都知道的具有或合理可能產生重大不利影響的任何事件或條件，應立即採取行動。.
“禁止反言證書。(1)在代理人提出要求後十(10)個工作日內，借款人應向代理人提交一份由借款人簽署的證書，說明票據和本協議項下的到期金額，並表明截至該證書的日期，未發生任何違約或違約事件且仍在繼續，或者，如果任何此類違約或違約事件已經發生且仍在繼續，則應合理詳細地描述每種違約或違約事件以及爲補救該違約或違約事件而採取或正在採取的行動(如有)。(2)在代理商提出要求後，借款人將以書面形式要求各承租人向代理商遞交一份由該零售承租人籤立的證書(其中包括：(I)適用租約有效，(Ii)該租約下的應付租金；及(Iii)據該租戶所知，截至該證書日期，出租人-承租人並未在該租約下發生或繼續發生任何違約或違約事件)。(3)在代理人提出要求後(但如果未發生違約事件，每一歷年不得超過一次)，借款人應立即以書面形式要求任何經營協議、總承包商協議和/或建築師合同項下的每一方當事人以代理人或貸款人合理滿意的形式和實質提交禁止反言證書。(4)在代理人提出要求後(但如沒有失責事件發生，每一歷年不得超過一次)，借款人會立即以書面向酒店經理要求發出禁止反言證明書。
“其他信息。應代理人的要求並由借款人承擔費用，應代理人的合理要求，及時提供關於借款人和對方貸款方的業務、財產或財務狀況的其他信息，包括各自履行貸款文件義務的情況。此外，在代理人提出合理請求後，借款人或其關聯公司(S)應立即向任何多僱主計劃的管理人申請根據《僱員退休保障計劃》第101條(L)的規定適用的估計提取負債。車庫協議、保養和維修.
“未經代理人事先同意，借款人不得（i）實質性修改、轉讓或同意車庫管理協議或停車場租賃任何條款的轉讓或終止，或放棄或解除其任何將對車庫管理協議或停車場租賃產生重大不利影響的權利和救濟措施（如適用），或（ii）更換、終止或以其他方式替代車庫 經理與新經理或停車經理與新租戶或經理（如適用，“新經理.
“留置權和產權負擔；抵押品的所有權。酒店費用借款人在任何時候都是酒店財產的絕對和唯一所有人，車庫費用借款人在任何時候都是車庫財產的絕對和唯一所有者，經營承租人借款人在任何時候都是酒店財產租賃權益的絕對和唯一所有者，借款人應該是其他抵押品的合法和實益所有權的絕對和唯一擁有者，並且在費用簡單絕對的情況下，擁有良好的和可交易的所有權，在任何情況下，免去和沒有任何留置權，除非(I)允許的產權負擔，和(Ii)借款人解除記錄(通過付款，擔保或其他)在借款人意識到此類留置權後三十(30)天內和代理人書面通知後三十(30)天內。在不限制本協議和其他貸款文件的任何其他條款的情況下，借款人未經代理人事先同意，不得對土地或改善或其任何部分作出、授予、修改或終止任何通行權或使用權、聲明、航空權利轉讓、其他聲明、分區地段開發協議、特權、特許經營權、許可證、地役權、地役權及其他產權負擔，任何方式均不得對土地或改善或其任何部分產生重大不利影響。借款人不得直接或間接協助設立、允許、導致設立或允許保留任何借款人的任何直接權益或實益權益上的任何留置權，並應立即解除或促使解除任何留置權。
48
49289660

經准許的比賽
“。在事先向代理人發出書面通知後，只要當時不存在違約或違約事件，借款人可通過本着善意和盡職調查進行的適當法律程序，以其自負的費用和費用，對任何強制、法律要求、保險要求或留置權的全部或部分數額、有效性或申請提出異議，並推遲付款或遵守，但須受下列條件的限制：在未繳稅款的情況下，此類訴訟程序應暫停向借款人、代理人、貸款人和抵押財產收取或強制執行稅款；
“根據代理人的合理判斷，抵押財產、任何租金、其任何部分或其中的任何權益都不會有任何被出售、沒收、終止、註銷或在任何方面丟失的危險；在法律要求的情況下，借款人不會因不遵守而面臨刑事責任的危險，代理人或任何貸款人也不會因不遵守法律要求而面臨任何民事或刑事責任的危險；
“借款人須提供訴訟程序所需或代理人合理要求的保證(如有的話)，以確保繳付任何徵款或遵守任何法律規定或保險規定(視屬何情況而定)，以及可能因此而到期的任何利息或罰款；在任何該等訴訟的待決期間，不繳付任何徵款或其他收費的全部或任何部分，並不會因該等不繳付而導致向按揭財產或其任何部分交付稅契；支付根據本協議和其他貸款文件規定必須支付的任何款項(當時根據本協議未支付的任何稅款除外)第5.8條)不得受到干擾或以其他方式影響；已預留；以及借款人遵守租約和任何其他協議中規定的任何和所有條件或要求，借款人是該協議的一方或以其他方式對該競賽具有約束力；提供，第(A)、(C)、(D)和(E)條所列條件不應成爲依據本條款進行的許可競賽的條件第5.8條
“如果借款人支付或擔保超額或以其他方式遵守此類強制、法律要求、保險要求或留置權。改建
49
49289660

“。未經代理人事先書面批准，借款人不得更改或增加改進或以其他方式進行任何更改；借款人應支付代理的所有合理自付費用，包括與審查本協議規定的任何擬議租賃、修改、豁免、終止或退回相關的代理律師費
“第5.10節
“所需保險保險單借款人或代表酒店財產的酒店經理應自負費用，在整個期限內爲借款人和抵押財產購買和維護保險單，並至少提供下列保險：, 第5.11(A)條(
“” 與此有關的單獨保險)騷亂和民衆騷亂、破壞、惡意破壞、入室盜竊和盜竊(A)，金額相當於抵押財產「全部重置成本」的100%(100%)，就本協議而言，指實際重置價值(不包括挖掘、地基、地下公用設施和地基的成本)，並免除折舊；(2)免賠額不超過50,000美元，但水毀免賠額爲250,000美元，以及風暴或地震除外，其免賠額不超過每次事件財產保險總價值的5%(5%)；(3)包含關於抵押財產的改善和個人財產的商定金額背書，免除所有共同保險條款；以及(4)如按揭財產的任何改善或使用在任何時間構成合法的不合規構築物或用途，並就建築物未受損部分的損失(限額相等於重置成本)、拆卸成本和增加的建造成本作出補償，則須載有「條例或法律承保範圍」批註，每項補償的款額均由代理人規定。此外，借款人應獲得：(Y)如果改進的任何部分目前或未來任何時候位於聯邦指定的「特別洪水危險地區」，則洪水風險保險的金額等於(I)未償還本金餘額或(Ii)根據1968年《國家洪水保險法》、1973年《洪水災害保護法》或1994年《國家洪水保險改革法》(每一項均可修訂)或代理人要求的較大金額中較小的金額；和(Z)在金額、形式和實質上令代理人滿意的地震保險(但貸款人不得要求地震保險，除非該財產位於地震區3或4，但根據上述(Y)和(Z)條規定的保險條款應與本條款所要求的全面風險保險單相一致第5.11(A)(I)條(
50
49289660

租金損失和/或業務收入中斷保險(1)應向貸款人支付的損失；(2)承保#年規定的保險所規定的所有風險
“第5.11(A)(I)(A)條上圖和
“第5.11(A)條(X)以下；(3)涵蓋二十四(24)個月的恢復期，幷包含延長的賠償背書期限，其中規定，在改善工程和個人財產的實物損失得到修復後，持續的收入損失將得到保險，直至收入恢復到損失前的水平，或自抵押財產修繕或更換之日起十二(12)個月屆滿，以及
“恢復經營，不論最先發生的情況如何，即使保單可能在上述期間結束前屆滿；及(4)自抵押物業修理或更換及恢復經營之日起計二十四(24)個月期間，金額相等於抵押物業的預計租金的百分之百(100%)。這種業務收入保險的金額應在本合同日期之前確定，此後至少每年一次，基於借款人對抵押財產在隨後二十四(24)個月期間的租金的合理估計。根據本協議應支付給代理商的所有款項第5.11(A)(I)條(
“C)應由代理人持有，並應適用於不時到期並根據本協議和票據支付的貸款文件所擔保的債務；提供然而，，不得當作免除借款人支付未償還的貸款本金的義務，連同與該貸款有關的所有到期和應付的利息及其他債務，以及在票據及其他貸款文件所規定的付款日期的所有其他未償債務，但如該等款額是從該等業務收入保險的收益中實際支付的，則屬例外；
“在結構建造、修理或改建期間，只有在財產或責任保險表格不適用的情況下，(1)商業普通責任和傘狀責任保險承保的索賠不在上述商業普通責任和傘狀責任保險單的條款或規定之下，如第5.11(A)(I)條；及(2)第(2)款所規定的保險第5.11(A)(I)條(
“A)在不報告的基礎上，以所謂的建築商風險完成值表格(W)寫成，(X)根據下列規定投保的所有風險第5.11(A)(I)(A)條上面，(Y)包括允許佔有抵押財產，以及(Z)有商定的金額背書，免除共同保險條款；受抵押財產所在州法定限額限制的工人補償，以及代理人不時要求對抵押財產上或有關的任何工作或操作，或與抵押財產或其操作有關的限制的僱主責任保險(如果適用)；
“全面的鍋爐和機械/設備故障保險(如適用)，其金額應爲代理人合理要求的金額，其條款應與下列條款所要求的商業財產保險單一致第5.11(A)(I)(A)條上圖；
“第5.11(A)(I)(B)條*(E)及
“所有自有和非自有車輛的商用汽車責任保險，包括租賃和租賃的車輛，每次發生的最低限額，包括傘形保險，具有代理商不時要求的限額；已預留；以及
“在六十(60)天通知後，代理人可以不時合理要求的其他合理保險，針對當時通常爲與抵押財產所在地區或其周圍的抵押財產相似的財產投保的其他可保危險投保。
“(C)、(D)和上述保險應包括恐怖主義和恐怖主義行爲的危險(或至少不具體排除)，借款人應維持財產保險、商業一般責任保險、傘形責任保險和因恐怖主義危險和行爲造成的損失的租金損失和/或業務中斷保險，其條款(包括金額)應與下列要求一致第5.11(A)(I)(A)條
“和以上(或至少不特別排除)在貸款期限內的所有時間。
“儘管有任何第5.11(A)(I)(A)條
“或5.11(A)(Ix)
“與上述相反，借款人應被要求在其財產保險單(或單獨的保險單)中獲得並維持對恐怖行爲造成的損失或損害的保險，金額相當於抵押財產「全部重置成本」的100%(100%)；提供
51
49289660

“這樣的報道在商業上是可用的。如果與恐怖主義行爲有關的這種保險不包括在《公約》所要求的「一切險」財產政策中第5.11(A)(I)(A)條如上所述，借款人應被要求獲得恐怖主義保險(作爲獨立保險)，金額相當於抵押財產「全部重置成本」的100%(100%)加上下列條款下的租金損失和/或業務中斷保險第5.11(A)(I)(C)條
以上；提供, 這樣的報道在商業上是可用的。借款人應獲得本協議規定的承保範圍第2.6節或在修復完成後付清或轉讓給借款人。故意留空；
任何淨恢復獎的發放應以滿足(或由代理人放棄)下列各項條件爲條件(每一項條件)釋放條件(譴責)總體而言，
, 不到10%(10%)的土地被徵用，該等土地位於物業的周邊或邊緣，而改善工程並無任何部分位於該等土地上；, [故意省略]；不應發生或繼續發生任何違約或違約事件；借款人應在取消通知發生後六十(60)天內將借款人進行修復的意向通知代理人；借款人應已向代理人證明並使其合理地信納，修復工作將按照《運營協議》、《許可產權負擔》、《酒店管理協議》、《車庫管理協議》(如果並在適用的範圍內)的任何要求完成，並且該等協議在任何此類修復後應繼續有效；借款人應向代理人證明並使其合理地信納，恢復工作可在當前到期日前三(3)個月內完成；
借款人應向代理人證明並使代理人合理地信納，借款人可通過代理人善意確定的預計收入、租金和/或業務中斷保險向借款人提供足夠的資金
“第5.11節
“在支付本合同項下的任何款項之前，擔保人(或代理人可自行決定接受的其他擔保人)應已簽署並向代理人交付一份完成保函，保證書的形式和內容應爲代理人合理接受，該保證書應保證留置權自由完成修復；以及如果淨修復獎不足以支付修復費用(由獨立建築師估計，並由代理人以其合理的酌情決定權批准)，借款人應向代理人提供信用證、現金按金或類似的等值擔保，金額爲代理人在形式、內容和發行方合理滿意的此類不足之處。第5.12(G)節
“在貸款期限內和申請後作爲貸款本金的預付款。儘管本文件中包含了任何相反的內容
52
49289660

“第5.13節，如果本協議的條款與第5.13節
“以及《酒店管理協議》關於持有、支付和/或使用與酒店有關的獎勵的規定，則應受《酒店管理協議》的規定管轄和控制。將意外傷害或提取的收益用於貸款；償還貸款
“。受制於第5.12(H)節、在發生意外事故時，如果保險淨收益的處置受下列條件的制約第5.12(E)條或受制於.
“第5.13(D)條、在收取時，如果淨恢復獎的處置受以下條件管轄
，在代理人的選擇下，貸款應在120天前通知，應立即到期並支付，
連同預付費及與強制性預付貸款有關的所有其他到期及應付款項
第2.4條
53
49289660

在此，；以及本協議中與《愛國者法案》、《美國銀行保密法》以及有關洗錢和類似活動的任何其他法律要求有關的其他條款。反腐敗義務。每個借款人聲明並保證，就本協議而言，借款人以及據借款人所知在任何借款人中有經濟利益的每個人已經並將繼續遵守所有適用的反賄賂和腐敗法律和法規，包括1977年美國《反海外腐敗法》和英國。《2010年反賄賂法》(《反腐敗義務“)。在整個期限內，借款人應始終保持並執行適當的政策、程序和控制措施，以確保遵守反腐敗義務。總承包商協議借款人應(I)以商業上合理的努力促使總承包商管理零期改造項目和/或PIP項目，並根據總承包商協議履行其職責，(Ii)在所有實質性方面認真履行和遵守借款人應履行的總承包商協議的所有條款、契諾和條件，(Iii)及時將其知悉的總承包商協議項下的任何重大違約通知代理人。(4)採取商業上合理的努力，迅速強制履行和遵守總承包商根據《總承包商協定》規定必須履行和遵守的所有契諾；(5)採取商業上合理的努力促使總承包商確保每個承包商在每個施工合同下執行的工作是適用的計劃和規範要求的工作(反映現場條件的最小變更除外)和(Vi)確保所有改善工作應基本上按照適用的計劃和規範以良好和熟練的方式完成，並且應沒有任何缺陷。應代理人的要求，借款人應促使總承包商以代理人合理要求的形式和細節以及間隔時間，向代理人和施工顧問提供有關改善工程施工狀況的報告；但只要沒有違約事件發生且不會繼續，則每月不得超過一次。如果借款人不履行或遵守總承包商協議的任何實質性條款、契諾或條件(超出適用的通知和補救期限)，則在不限制代理人在本協議或其他貸款文件或總承包商協議項下的其他權利或補救措施的情況下，在違約事件持續期間，代理人有權但無義務支付任何款項，並執行任何適當的行動或採取任何行動，以導致所有重大條款，
禁止終止或修改總承包商協議
。借款人不得(I)未經代理人明確書面同意，(I)放棄、終止、取消、修改、續簽或延長總承包商協議，(Ii)與總承包商或任何其他人訂立與開發或施工改善工程有關的任何其他協議，(Iii)同意總承包商轉讓其在總承包商協議項下的權益，或(Iv)放棄或放棄總承包商協議項下的任何權利和補救措施，除非代理人明確書面同意，而代理人不得無理拒絕同意。
“建築師合同。應代理人的要求，借款人應盡商業上合理的努力(在符合建築師合同條款的前提下)促使借款人的建築師以代理人合理要求的形式和細節，向代理人提供有關零期改造項目和/或PIP項目(視情況而定)施工狀況的報告。
“更換總承包商，借款人的建築師。在不限制代理人和貸款人在貸款文件下的任何其他權利的情況下，在代理人的選擇下，借款人應根據下列任何一項或多項事件的發生，並在發生下列任何一項或多項事件時，將總承包商和借款人的建築師撤換並由代理人批准，但(第(I)款的情況除外)應具有合理的酌情權(或如果代理人在選擇後三十(30)天內未經代理人批准，則由代理人自行選擇此人(S))：在違約事件發生後的任何時間和在違約事件持續期間，(Ii)如果任何一方存在嚴重疏忽、欺詐、故意不當行爲或挪用資金，(Iii)如果一方存在重大違約行爲，且超出所有適用範圍
“根據總承包商協議或建築師合同(視情況而定)規定的通知和補救期限，或(Iv)如果當事人在任何破產或破產程序中破產或成爲債務人。如果代理人在任何時候同意(A)任命新的總承包商，作爲代理人同意的條件，該總承包商和借款人應以代理人合理接受的形式和實質籤立和交付總承包商協議的從屬關係，和/或(B)指定新建築師，作爲代理人同意的條件，該建築師和借款人應以代理人合理接受的形式和實質籤立和交付建築師證書和/或(C)指定施工經理，作爲代理人同意的條件，以代理商合理接受的形式和實質簽署並交付施工管理協議的附屬文件。.
“借款人應(I)迅速履行和/或在所有實質性方面遵守《酒店管理協議》要求其履行和遵守的所有契諾和協議，並採取一切必要措施維護和保持其在《酒店管理協議》項下的實質性權利不受損害；(Ii)就其知悉的《酒店管理協議》項下的任何違約及時通知代理人；(Iii)迅速向代理人交付其根據《酒店管理協議》收到的每一份財務報表、業務計劃、資本支出計劃、通知、報告和估算的副本；未經代理人事先書面同意，借款人不得(I)放棄、終止或取消酒店管理協議；(Ii)減少或同意縮短酒店管理協議的期限；(Iii)增加或同意增加酒店管理協議項下的任何收費金額；(Iv)以其他方式修改、更改、補充、更改或修訂、或放棄或放棄其在酒店管理協議下的任何權利和補救措施；或(V)更換酒店經理或簽訂任何替代的酒店管理協議。
“考慮到物業內酒店的樓齡及位置，及(Ii)爲可與物業上的酒店相媲美的酒店維持足夠的存量，以符合酒店行業標準，並維持足夠的水平，使物業內的酒店在入住率達滿額的情況下運作。(見上文)，等於或小於重新分配時適用項目的完成百分比。
“經代理商事先書面批准，借款人可將零期改造預算和/或PIP預算(視情況而定)中的「業主的或有軟成本」重新分配到適用項目預算中屬於軟成本或硬成本的項目相關成本的其他項目中(不包括運營費用或償債，除非零期改造項目和PIP項目均已最終完成)。然而，前提是對於將「業主軟成本或有事項」重新分配到適用項目預算中與項目有關的軟成本和/或硬成本的任何此類項目，如果重新分配的金額(連同以前重新分配的所有其他「業主軟成本或有事項」)在適用項目預算中表示爲總的「業主軟成本或有事項」的百分比(考慮到根據, 第5.43(E)(I)條(上文)等於或小於重新分配時適用的項目預算的完成百分比；
54
49289660

然而，前提是
“在任何情況下，可供重新分配的「業主軟成本或有事項」不得超過50%(50%)重新分配給硬成本。
“一般情況。儘管本協議有任何相反規定，但如果適用的項目預算包括總承包商「一般條件」的明細項目，則未經代理人事先書面同意，借款人不得將節省的成本或任何「業主硬成本或意外費用」或「業主軟成本或意外費用」重新分配到「一般條件」明細項目，不得無理扣留。如果本款(F)與任何貸款文件中規定的任何其他條款之間存在不一致或衝突，則以本款(F)爲準。
“儲存的材料。貸款人不應被要求爲尚未納入零期改造項目和/或PIP項目(視情況而定)的任何材料、機械或其他個人財產支付任何資金
“儲存的材料“)，除非以借款人的全部成本和費用滿足下列條件：借款人應向代理人提交銷售提單或其他合理地令代理人滿意的證據，證明借款人對該等儲存材料的所有權，以及在支付費用後的費用；.
“儲存的材料現在和任何時候都應位於美國；儲存的材料被標識給財產和借款人，並被分開，以便充分向所有第三方發出借款人對該材料的所有權的通知，並且是基本最終形式的組件，準備納入改進；儲存的材料儲存在物業或代理人批准的其他第三方擁有和運營的地點，並以代理人滿意的方式防止被盜和損壞，包括如果代理人提出要求，儲存在物業所在大城市地區的保稅倉庫中；對於未存儲在物業的存儲材料，除非將此類材料交付至物業或符合本協議要求的其他存儲位置，否則不會移動此類存儲材料
“借款人應在五(5)個工作日內向代理人提供借款人收到的任何通知的副本，該通知聲稱借款人、酒店經理或酒店物業在集體談判協議下嚴重違反或違約。
“未經貸款人事先明確書面同意，借款人或酒店經理不得停止成爲任何集體談判協議的一方或以其他方式遵守任何集體談判協議，任何借款人或酒店經理也不得做出任何可能導致任何貸款人或其關聯公司成爲任何集體談判協議的一方或受其約束的任何行爲或不作爲。借款人應爲代理人、貸款人及其附屬公司違反上述任何規定，包括由此產生的任何和所有責任，爲其辯護並使其不受損害。
“借款人應在房產發生任何養老金留置權後五(5)個工作日內及時通知代理人。借款人應在下列任何事項發生或威脅發生後五(5)個工作日內立即通知代理人或
55
49289660

“第六條
“已保留第七條違約事件違約事件
“。以下各項均構成本協議下的「違約事件」：借款人未能(I)在到期時支付貸款本金(包括但不限於到期日未償還的貸款本金)或(Ii)定期按月支付票據的應計未付利息(在適用範圍內，包括按違約利率計算的利息)(但前提是，如果未能支付利息，且(X)現金管理帳戶有足夠資金支付所要求的付款，則不構成違約事件
“第4.4(A)(Vii)條
“然而，前提是，借款人應在代理人通知借款人違約後有兩(2)個工作日的寬限期
“然而，如該欠款的性質不能藉付款予以補救，以及如該欠款需要進行工作、須作出的作爲或須予刪除的條件，而該等工作、作爲或條件的性質是不能在該30天期限內作出、作出或移去(視屬何情況而定)的，而借款人或該另一貸方(視屬何情況而定)須在該30天期限內開始補救該不履行事項，則該期限須當作延長至借款人或適用的貸款人(視屬何情況而定)所要求的時間，在進行盡職調查以糾正此類故障時，但在任何情況下，該30天期限不得延長至超過九十(90)天；
56
49289660

任何借款人或任何其他信貸方應(I)自願啓動任何程序或提交根據任何聯邦、州或外國破產、接管或類似法律尋求清算、重組或其他救濟的請願書，(Ii)同意提起或未能以及時和適當的方式對任何此類程序或請願書提出異議，(Iii)申請或同意爲任何借款人或任何其他信貸方或其各自資產的很大一部分指定接管人、受託人、保管人、扣押人、保管人或類似官員，
“爲債權人的利益而轉讓或(Vi)爲實現上述任何目的而採取任何行動；應啓動非自願程序或提交非自願請願書，以尋求(I)根據現在或今後有效的任何聯邦、州或外國破產、破產、接管或類似法律，對任何借款人或任何其他信貸方各自的債務或其相當一部分資產進行清算、重組或其他救濟，或(Ii)爲任何借款人或任何其他信貸方指定接管人、受託人、保管人、扣押人、保管人或類似官員，以尋求(I)就任何借款人或任何其他信貸方各自的大部分資產進行清算、重組或其他救濟，在任何情況下，該程序或請願書不應被解除，在批准或下令上述任何一項的命令或法令發出後九十(90)天內停職或解聘，應記入；
“任何借款人不應適當履行和遵守第#款第二句和第三句中所載的任何契諾。第5.7條分段(除第二句外
“第5.11(A)(Ii)條然而，前提是，不屬於違約事件，如果違約是與支付保險費有關，並且稅務和保險儲備子帳戶中有足夠的資金來支付本協議所要求的保險費，則當時沒有其他違約事件持續發生，代理人或服務機構沒有違反本協議支付(或導致支付)該等款項)，
“穿過然而，前提是
“如果在任何借款方中擁有直接或間接所有權權益的人將成爲或成爲被禁制者，並且借款方在(I)代理人向借款人發出通知或(Ii)任何借款方獲知該人是或成爲被禁制者後三十(30)天內，該人不再擁有該借款方的直接或間接所有權權益，則不構成違約事件)，和/或借款人不應適當履行和遵守下列條款中所載的任何條款
“第5.1條，且此類違約在代理人通知借款人後五(5)個工作日內持續；
“
57
49289660

“故意留空；借款人不應適當履行和遵守下列條款中所載的任何條款
“第5.2(E)條和
“然而，前提是，這將不是一個事件如果違約是關於支付財產稅，並且稅收和保險儲備子帳戶中有足夠的資金來支付本協議所要求的財產稅，則沒有其他違約事件繼續發生，代理人或服務商沒有違反本協議支付(或導致支付)，第一句話.
“第5.7條，第二句話
    “，第四句話第5.12(B)條，第四句話
“第5.13(A)條或部分

2.和/或.
1.在代理商通知借款人違約後，違約持續十(10)個工作日；
2.借款人應在下列情況下未能獲得利率保護協議
3.第2.9.1節在本協議規定的任何適用寬限期之後，借款人的任何違約應發生在任何利率保護協議項下，或如果本協議要求對本協議生效的任何利率保護協議停止完全生效，且借款人未能在十(10)個工作日內促使替代利率保護協議全面生效，則借款人的違約應繼續發生；”, “發生里程碑式的不遵守事項，因不可抗力可能延長；”, “如未經代理人事先同意，酒店管理協議的修訂、修改或終止須經代理人同意；
4.如果發生任何許可證吊銷事件，並且該事件在該許可證吊銷事件發生後三十(30)天內未被修復，但如果借款人正在努力尋求解決該違規行爲的三十(30)天期限內該違約行爲不能合理地被修復，則該違約行爲不屬於違約事件，在這種情況下，該期限應延長至最長六十(60)天；如果零期改造項目和/或PIP項目(視情況而定)在接到通知後，在任何時間停止施工超過連續三十(30)天(該期限可因不可抗力而延長)，且未能在該期限內恢復施工；貸款提速。”.
5.如發生違約，代理人可向借款人發出通知，宣佈本票據所證明的債務以及根據該票據和其他貸款文件應支付的所有其他款項立即到期並應支付(但下述性質的任何事件除外
58
49289660

第7.1(F)條
或
並可根據任何一項或多項證券文件、其他貸款文件或在法律或衡平法上可獲得的任何一項或多項貸款文件，行使代理人的權利及補救。
1..
1.。總和預付款。爲了代理人和貸款人的利益，借款人應就代理人或貸款人根據貸款文件的條款支付或發生的與借款人開始的任何施工有關的所有款項向代理人承擔責任，無論這些款項是否應根據本
2.第7.3條.
(a)附件B”).
(b)在此附件中，(B)提供與物業有關的最新預算和租金清單，以及(C)提供(並配合代理人採購)最新的評估、市場研究、環境審查和報告(第一階段和第二階段)、物業狀況報告和物業的其他盡職調查(更新信息“)，如有慣例，還應通過代理人合理接受的審計信函或律師意見，對最新信息進行適當核實；提供律師的意見，代理人、每個貸款人及其各自的繼承人、受讓人和參與者、承銷商、代理人和代表，對物業、貸款文件、借款人及其附屬公司的不合並或二級市場交易中慣用的任何其他意見，提供律師意見，這些律師和意見應令代理人和每個貸款人合理滿意；
3.對貸款文件和借款人的組織文件以及代理人要求的其他文件進行修改，包括但不限於
59
49289660

第8.4節
4.下圖；.
(a)然而，前提是
(b)借款人不應被要求進行任何被禁止的更改(定義如下)；以及
5.應代理人的要求，安排擔保人和代理人要求的借款人代表在借款人辦公室與任何潛在二級市場交易中的任何投資者或潛在投資者會面。根據本協議提供的任何財務數據或財務報表
2.第8.1條.
(a)應在收到代理商通知後十(10)個工作日內提供給代理商。
(b)
(c)。借款人承認並同意，在符合代理人和每個貸款人當時有效的標準保密程序的情況下，代理人和每個貸款人可在任何時間向任何實際或擬議的受讓人或參與者提供本協議的任何其他貸款文件和任何其他文件、文書、證書、意見、保險單、信用證、財務報表、報告、申購單和其他材料和信息，由借款人、任何其他貸款方或其他人提交，和/或由代理人或任何貸款人或其代表收到；提供然而，
60
49289660

(d)第8.2節而此類信息不應由任何此類機構披露被提議的受讓人或參與者，但其各自的僱員、董事、高級管理人員、顧問或代理人需要該信息並同意受本
(e)第8.2節。未經借款人同意，代理人或任何貸款人不得向任何第三方提供關於借款人或任何其他貸款方的任何非公開信息，這些信息(A)代理人或任何貸款人已從借款人或任何其他信用方或代理人處收到，以及(B)借款人或該等其他信用方或代理人已書面通知代理人或該貸款人保密，但代理人或任何貸款人可根據本條款第一句的規定披露這些信息第8.2節
(f)如果法律、法規或法律或監管程序要求或政府機構或自律組織(統稱爲，法律“)披露資料；
61
49289660

提供
(g)遣散費遣散費文件。在不以任何方式限制代理人和貸款人在本協議項下的其他權利的情況下，代理人有權在任何時候(無論是在任何二級市場交易之前或之後)，以其唯一和絕對的酌情決定權要求借款人執行和交付組件「證明由特定貸款人持有的貸款部分的票據和/或一張或多張替代票據(和術語」注意事項
(h)“如在本協議和所有其他貸款文件中使用的，應包括所有此類組成部分票據和/或替代票據，但應排除被相同票據取代的任何票據)，和/或修改貸款以創建一個或多個優先和從屬票據(例如，A/B或A/B/C結構)或
(i)平價通行證
62
49289660

3.但條件是，即使本合同有任何相反的規定，在任何情況下，借款人都不得做出(也不得允許貸款人作出)任何被禁止的更改。在代理人的選擇下，組成貸款的每張票據可以單獨進行一筆或多筆二級市場交易。代理商有權根據本協議修改附註和/或附註以及任何組件
4.第8.3.1節.
(a)並且，只要該修改應符合本第8.3.1節
(b)，該修改應立即生效。保留合作；執行；交付。第8.3節, 。如果代理人提出要求，借款人應：(I)配合代理人的所有合理要求，以建立組件“注：(2)迅速簽署並交付代理人要求的與根據本協議進行的任何修改有關的文件(包括但不限於對貸款文件的任何修改)第8.3節所有形式和實質都令代理人滿意，包括在被要求時切斷安全文件；前提是，儘管本協議有任何相反規定，借款人不應被要求(I)修改或修改任何貸款文件，如果該修改或修改將(A)改變貸款的總未償還本金餘額、當時適用的到期日、加權在緊接本文或附註所載的本金修改或攤銷前有效的平均利率(
(1)但前提是
(2)附件F
(3)附於本文件(但爲免生疑問，(A)並非下列所有決定
(4)附件F
5.隨信附上的遺囑必須是該共同貸款人協議中所要求的貸款人決定，以及(B)該共同貸款人協議中規定的決定的術語可能與
63
49289660

附件F
6.特別是，對於任何必要的貸款人決定，可能存在某些例外情況，使這種決定不是必要的貸款人決定)。借款人承認並同意在不少於五(5)個工作日之前向借款人發出書面通知(和更新通知“)，但沒有借款人的任何同意權，貸款人和代理人可在簽署任何共同貸款人協議時更新附件F修改、修改、補充、限制、警告、添加和/或刪除任何所需的貸方決定(雙方同意，自該五(5)個營業日期限屆滿起及之後，當時的.
7.附件F應視爲作爲本協議的附件全部刪除，並以新的
8.附件F.
1.未來的籌資義務。未來的融資貸款人
2.「)保留貸款人在本合同項下爲任何墊款(」.
3.未來的籌資義務.
(a)借款人特此保障並同意捍衛、保護和持有無害的代理人和貸款人及其各自的關聯公司、參與者、董事、高級管理人員、代理人、僱員和「控制人」(根據聯邦證券法的定義)(各自、和
64
49289660

(b)受賠方“)任何和所有實際損失、責任、義務、費用、索賠、損害賠償(不包括相應的、特殊的、懲罰性和懲罰性的損害賠償，但由任何第三方對代理人或貸款人提出的或由代理人或任何貸款人支付的範圍除外)、罰款、訴訟理由、費用和費用(包括合理的律師費和支出)，與本協議或任何其他貸款文件、完成本協議或其中所述的交易或收購、開發、或收購、發展、抵押財產的建造、管理、融資維護、銷售、營銷、租賃、使用、經營或佔用，包括下列事項：在抵押財產或其任何部分、或毗鄰的人行道、路緣、拱頂和拱頂空間(如有的話)以及街道和小徑上或其周圍發生的任何意外、人員傷亡或財產損失或損壞；抵押財產或其任何部分或毗鄰的人行道、路緣、拱頂和拱頂空間(如有)以及街道和道路的任何設計、施工、操作、使用、不使用或狀況，包括因違反任何法律要求或保險要求而引起的索賠或罰款，以及基於任何專利或潛在缺陷的索賠，無論代理人或任何貸款人是否可以發現，以及任何保險不足的索賠；, 對抵押財產或其任何部分履行或未履行任何勞動或服務，或提供或未提供任何材料或其他財產；任何借款人、任何其他信用方或上述各方的任何關聯公司或其任何代理人、承包商、傭工、僱員、承租人、承租人、轉租人、被許可人、客人或被邀請人的任何疏忽或侵權行爲或不作爲；
(c)
4.任何其他人或其代表針對代理人或貸款人提出的任何申索、訴訟或其他法律程序，該代理人或貸款人是根據本協議或與本協議有關而存放或支付的任何款項的持有人，或因(Y)其在根據本協議或與本協議有關而存放或支付的任何款項中的權益，或(Z)借款人取得按揭財產(或其任何部分)；如果代理人或任何其他人因票據、本協議或任何其他貸款文件的籤立和/或交付而啓動或採取任何訴訟或法律程序(包括取消任何擔保文件、收回票據或其他貸款文件下的義務或強制執行代理人的權利的訴訟)，或因籤立和/或交付票據、本協議或任何其他貸款文件而成爲訴訟或訴訟程序的一方，或有必要根據本協議或其他貸款文件或票據或任何其他貸款文件強制執行、捍衛或維持對抵押財產的留置權，則所有實際的代理人支付的任何此類訴訟或訴訟的費用應由借款人在書面要求後五(5)天支付給代理人。如果抵押財產或其任何部分應爲止贖出售而不是出售而登廣告，借款人應支付與此相關的所有費用，包括合理的律師費、支出和廣告費。, 借款人將使代理人和每個貸款人不會因任何抵押貸款記錄或無形個人財產稅或現在或以後生效的類似徵稅而承擔的任何和所有責任，只要代理人或任何貸款人可能就本協議、任何票據或任何其他貸款文件支付這些責任沒有豁免權。代理人或任何貸款人未能或延遲行使本協議或其他貸款文件項下或與本協議或其他貸款文件有關的任何權利、權力或補救措施，或堅持嚴格履行本協議或任何其他貸款文件的任何條款，均不構成放棄，任何該等權利、權力或補救措施的單一或部分行使亦不得妨礙任何其他或進一步行使或行使本協議或任何其他貸款文件項下或與本協議或任何其他貸款文件有關的任何其他權利、權力或補救措施。代理的審核
5.。代理人或其代表所作的觀察、檢查及批准，不應向代理人、任何貸款人及任何人施加任何性質的責任或責任，任何人在任何情況下均無權以任何理由依賴代理人所作的觀察、檢查及批准，除非借款人在進行觀察或檢查或取得批准(視屬何情況而定)後，可視情況而定，認爲借款人已滿足進行觀察或檢查或取得批准的條件或要求。呈交證據. 本協議中要求提交特定事實存在或不存在的證據的任何條件都意味着該事實的存在或不存在（視具體情況而定）作爲一個條件，代理人應在任何時候都可以自由地獨立地證明其滿意地存在或不存在。代理人和貸方唯一受益人. 除代理人和貸方外的任何人均不得被視爲本協議和其他貸款文件的條款、規定、契約和其他條件的受益人，如果代理人認爲明智或可取，代理人可以隨時自由放棄全部或部分任何或全部條款。通告
6.. 所有通知、證書、要求、請求、批准、同意、放棄和其他通訊（上述任何一項，“通知
7.“）本文規定的方式應爲書面形式，並且（a）郵寄（郵寄或認證郵件，要求退貨收據，並預付郵資），（b）親手交付，並附有簽名收據，（c）通過國家認可的隔夜快遞公司發送，或（d）作爲電子郵件的.pdf附件發送（前提是通過電子郵件發送的任何通知也通過本規定的通知的其他方式之一送達 第10.12節 在此類電子郵件發送日期後的工作日），在每種情況下，具體如下：,
65
49289660

如果致借款人，致：轉交Cim Group，LLC威爾希爾大道4700號
8.加利福尼亞州洛杉磯90010.
(a)注意：尼古拉斯·佈雷耶、格雷格·羅爾曼和亞歷克斯·裏格副本至：Paul，Weiss，Rifkind，Wharton & Garrison LLP
(b)美洲大道1285號紐約，紐約10019 -6064注意：賀錦麗b。弗萊迪斯
9.電子郵件：.
1.hfreidus@paulweiss.com和
2.轉交Cim Group，LLC威爾希爾大道4700號加利福尼亞州洛杉磯90010注意：總法律顧問
66
49289660

如果致代理人，致：
3.德意志銀行紐約分行.
(a)哥倫布圓環1號，15樓紐約，紐約10019注意：Mrinal Dansingani
(b)電子郵件：mrinal. db.com
(c)德意志銀行紐約分行
(d)哥倫布圓環1號，15樓
(e)紐約，紐約10019
67
49289660

(f)注意：喬丹·所羅門
(g)電子郵件：jordan. db.com副本一份至： King & Spalding LLP
(h)美洲大道1185號 2.9.3(h)紐約，紐約10036注意：克里斯汀·奧康奈爾先生。電子郵件：ckoconnell@kslaw.com和漢諾威街資本公司
(i)西57街250號，套房2200紐約州紐約市，郵編：10107注意：Tom Deja和Bryan Whalen
68
49289660

(ii)電子郵件：Tom.Deja@hanoverstcap.com Bryan.Whalen@hanoverstcap.com如果是對貸款人：在這些地址旁邊列出的地址出借人在簽字上簽字翻到這裏。第10.12條
(i)在上述規定的地址收到(或被拒絕交付)時應有效。
4.捆綁效應。本協議對代理人和貸款人及其各自允許的繼承人和受讓人以及每個借款人及其允許的繼承人和受讓人的利益具有約束力。條文的可分割性。本協議的任何條款在紐約州或美國任何其他司法管轄區被禁止或不可執行，對於紐約州或美國其他司法管轄區而言，在不使本協議其餘條款無效或不影響此類條款在任何其他司法管轄區的有效性或可執行性的情況下，在該禁令或不可執行性範圍內無效。
5.適用法律和同意管轄權本協議是在紐約州談判達成的，由代理人和貸款人在紐約州作出，並得到紐約州借款人的接受，根據本協議交付的票據的收益是從紐約州支付的，雙方同意紐約州與雙方和本協議所包含的基礎交易有實質性關係，在所有方面，包括在不限制前述事項的一般性的情況下，本協議和根據本協議產生的義務應受紐約州適用於在紐約訂立和履行的合同的法律管轄和解釋
(a)
(b)。在不影響本協議所載任何其他協議存續的情況下，稅收、費用、賠償、補償、損害賠償和其他或有債務的義務(包括根據
(c)第2.11節
(d)和損害賠償。偏好
69
49289660

。除非在任何貸款文件中另有規定，否則貸款人和代理人有權繼續使用或撤銷和重新使用借款人對任何部分債務的任何和所有付款。任何貸款方向代理人或貸款人付款，或代理人或貸款人執行抵押或其他貸款文件的留置權或行使其抵銷權(始終按照
(e)第7.8節
6.而根據任何破產法、州或聯邦法、普通法、衡平法或其他規定，該一項或多項付款或該項強制執行或抵銷的收益或其任何部分其後被宣佈無效、被宣佈爲欺詐性或優惠性、被作廢或被要求(包括依據代理人酌情達成的任何和解協議)償還受託人、接管人或任何其他一方，則(1)在該追討範圍內，原擬履行的義務或其部分須予恢復，並繼續全面有效，猶如該等付款未予支付或該等強制執行或抵銷並未發生一樣。以及(2)每家貸款人各自同意應要求向代理人支付其從代理人那裏收回或償還的總金額中的應課差餉份額。對歐洲經濟區金融機構自救的認可和同意
7.儘管在任何貸款文件或協議各方之間的任何其他協議、安排或諒解中有任何相反的規定，本協議各方承認，任何EEA金融機構在任何貸款文件下產生的任何負債，只要該負債是無擔保的，都可能受到EEA決議機構的減記和轉換權力的約束，並同意、同意、承認並同意受以下約束：EEA決議機構對本協議項下任何一方(即EEA金融機構)可能向其支付的任何此類負債適用任何減記和轉換權力；以及
(a)任何自救行動對任何此類責任的影響，包括(如果適用)：
(b)全部或部分減少或取消任何此種責任；
(c)將該負債的全部或部分轉換爲該EEA金融機構、其母公司或一家可能向其發行或以其他方式授予它的過渡機構的股份或其他所有權工具，並且該機構將接受該等股份或其他所有權工具，以代替本協議或任何其他貸款文件項下的任何此類債務的任何權利；或
70
49289660

與任何EEA決議授權機構的減記和轉換權力的行使有關的此類責任條款的變更。
(d)正如在此中使用的
(e)第10.26條下列術語的含義如下：(一)“借款人
71
49289660

TIM/J Street Hotel Sacramento Owner，LLC
(f)TIM/J Street Hotel Sacramento ML，LLC
(g)TIM/J Street Garage Sacramento Owner，LLC每家都是特拉華州有限責任公司作者：
8./s/大衛·湯普森姓名：大衛·湯普森
9.職務：副總裁兼首席財務官[貸款協議簽署頁（薩克拉門託希爾頓大酒店）]
72
49289660

10.貸款人德國銀行股份公司紐約分行
11.作爲初始收件箱作者： /s/喬恩·蒂利 姓名：喬恩·蒂利 職務：總監作者：
10./s/克里斯托弗·賀錦麗.
姓名：克里斯托弗·賀錦麗
11.更換以下項目;會議室配備升級（網格/窄網格）ACt的2x 2 ACt，董事會會議室配備光滑的石膏板天花板，董事會會議室配備新的玻璃門/硬件。.
(a)將宴會廳的ACt百分比降至最高40%。裝飾枝形吊燈上方更換爲石膏板天花板。除了上述Caseggoods和Softgoods翻新項目之外;爲董事會會議室現有壁掛電視提供電源和連接的新桌子。<img src="https://www.sec.gov/akam/13/pixel_7edab100?a=dD0zNjk0MDAyODhlMDk0YzQxOTY4MjJiZDNkODNlNWQwODY3ODRmZWFjJmpzPW9mZg==" style="visibility: hidden; position: absolute; left: -999px; top: -999px;" />) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
73
49289660

(b)Payment of Other Taxes by Borrower. Borrowers shall timely pay to the relevant Governmental Authority in accordance with applicable Legal Requirements, or at the option of Agent timely reimburse it for the payment of, any Other Taxes.
(c)Indemnification by Borrower. Borrowers shall indemnify each Recipient, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.11(c)) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to Borrowers by Lender (with a copy to Agent), or by Agent on its own behalf or on behalf of Lender, shall be conclusive absent manifest error.
(d)Indemnification by Lenders. Lender shall indemnify Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that Borrowers have not already indemnified Agent for such Indemnified Taxes and without limiting the obligation of Borrowers to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 8.5 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to Lender by Agent shall be conclusive absent manifest error. Lender hereby authorizes Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by Agent to Lender from any other source against any amount due to Agent under this Section 2.11(d).
(e)Evidence of Payments. As soon as practicable after any payment of Taxes by Borrowers to a Governmental Authority pursuant to this Section 2.11, Borrowers shall deliver to Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Agent.
(f)Status of Lenders. (i) If Lender is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document and delivers to Borrowers and Agent, at the time or times reasonably requested by Borrowers or Agent, such properly completed and executed documentation reasonably requested by Borrowers or Agent, then such Lender shall be permitted to make such payments without withholding or at a reduced rate of withholding. In addition, Lender, if reasonably requested by Borrowers or Agent, shall deliver such other documentation prescribed by applicable Legal Requirements or reasonably requested by Borrowers or Agent as will enable Borrowers or Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.11(f)(ii)(1), (ii)(2) and (ii)(4) below) shall not be required if in Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii)    Without limiting the generality of the foregoing,
74
49289660

(1)if Lender is a U.S. Person, Lender shall deliver to Borrowers and Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrowers or Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(2)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrowers and Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or Agent), whichever of the following is applicable:
(A)in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the 「interest」 article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the 「business profits」 or 「other income」 article of such tax treaty;
(B)executed copies of IRS Form W-8ECI;
(C)in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not a 「bank」 within the meaning of Section 881(c)(3)(A) of the Code, a 「10 percent shareholder」 of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a 「controlled foreign corporation」 described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or
(D)to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS W-8BEN-E, a U.S. Tax Compliance Certificate, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner;
(3)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrowers and Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrowers or Agent), executed copies of any other form prescribed by applicable Legal Requirements as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Legal Requirements to permit Borrowers or Agent to determine the withholding or deduction required to be made; and
75
49289660

(4)if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to Borrowers and Agent at the time or times prescribed by law and at such time or times reasonably requested by Borrowers or Agent such documentation prescribed by applicable Legal Requirements (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrowers or Agent as may be necessary for Borrowers and Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct, if any, and withhold from such payment. Solely for purposes of this clause (4), 「FATCA」 shall include any amendments made to FATCA after the date of this Agreement.
Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify Borrowers and Agent in writing of its legal inability to do so.
(g)Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.11 (including by the payment of additional amounts pursuant to this Section 2.11), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 2.11(g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.11(g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 2.11(g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(h)Survival. Each party’s obligations under this Section 2.11 shall survive the resignation or replacement of Agent or any assignment of rights by, or the replacement of, Lender, the termination of the commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
(i)Defined Terms. For purposes of this Section 2.11, the term 「applicable Legal Requirements」 includes FATCA.
12.Reserved.
13.Increased Costs and Capital Adequacy.
(a)Borrowers agree to pay any Lender such additional amounts as are necessary to compensate it for costs incurred in maintaining its portion of the Loan, or any
76
49289660

portion thereof outstanding, or for the reduction of any amounts received or receivable, in either case, as a result of any change in any applicable law, regulation or treaty, or in the interpretation or administration thereof, in each case, which occurs after the date hereof and is applicable to such Lender, by any domestic or foreign Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law), or by any domestic or foreign court (including, notwithstanding anything herein to the contrary, the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith regardless of the date enacted, adopted or issued (but only to the extent actually implemented)), or any determination of a court or Governmental Authority, in each case that becomes effective after the date hereof, or compliance by such Lender with any guideline, request or directive issued or made after the date hereof by any central bank or other Governmental Authority (whether or not having the force of law and including all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case, pursuant to Basel III, regardless of the date enacted, adopted or issued (but only to the extent actually implemented)), (i) imposing, modifying or applying any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, credit extended by, or any other acquisition of funds for loans by any Lender (whether directly, indirectly or on a portfolio wide basis) or (ii) imposing on any Lender any other condition affecting the Note or the Loan. Such Lender will endeavor to notify Borrowers (with a copy to Agent) of any event occurring after the date hereof which would entitle it to compensation pursuant to this paragraph as soon as practicable after it obtains knowledge of the event and determines to request such compensation (but any failure to so notify shall not reduce the compensation due such Lender), and will designate a new applicable lending office for those portions of the Loan affected by such event if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in such Lender’s reasonable opinion, be disadvantageous to it, provided that such Lender shall have no obligation to so designate the applicable lending office located in the United States. In the event that the additional cost to Borrower pursuant to this Section 2.13(a) is in excess of the lesser of (x) one-half of one percent (0.5%) of the Outstanding Principal Balance per annum or (y) $2,000,000 in any one year, Borrowers shall have the right to prepay the Obligations in full on no less than ninety (90) days’ prior written notice, and no Additional Interest will be payable in connection with any such prepayment by Borrowers.
(b)If any Lender shall determine in good faith that (i) any change in or adoption of, in each case, which occurs after the date hereof, any law, rule, regulation or guideline regarding capital adequacy or the interpretation, administration or application thereof (including, notwithstanding anything herein to the contrary, (1) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (2) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case, pursuant to Basel III, regardless in the case of clauses (1) and (2) of the date enacted, adopted or issued (but in the case of clauses (1) and (2) only to the extent actually implemented)) or (ii) compliance by any Lender, or any lending office of any Lender, or the holding company of any Lender, with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency based on any such change or adoption, has or would have the effect of reducing the rate of return on any Lender’s capital to a level below that which such Lender would have achieved but for such adoption, change or compliance (taking into consideration the policies of such Lender with respect to capital adequacy), then from time to time Borrowers shall pay to Agent such additional amounts as will compensate Lenders for such actual reduction with respect to any portion of the Loan outstanding. In the event that the additional cost to Borrowers pursuant to this Section 2.13(b) is in excess of the lesser of (x) one-half of one percent (0.5%) of the Outstanding Principal Balance
77
49289660

per annum or (y) $2,000,000 in any one year, Borrowers shall have the right to prepay the Obligations in full on no less than ninety (90) days’ prior written notice, and no Additional Interest will be payable in connection with any such prepayment by Borrowers.
(c)Any amount payable by Borrowers pursuant to Sections 2.13(a) or (b) hereof shall be paid to Agent for the benefit of each affected Lender within ten (10) days of receipt by Borrowers of a certificate of Agent setting forth the amount due and such Lender’s basis for the determination of such amount, which statement shall be conclusive and binding upon Borrowers absent manifest error. Each affected Lender shall endeavor to promptly inform Borrowers of the occurrence of any of the events referred to in this Section 2.13 which shall result in Borrowers being required to make any payments to Agent or such Lender pursuant to this Section 2.13; provided, however, the failure of such Lender to provide such notice shall not excuse Borrowers from their obligations pursuant to this Section 2.13 or provide Borrowers or any other Person the right to claim any damages or to exercise any other rights or remedies against Agent or any Lender; provided, further, that the failure on the part of Agent or any such Lender to demand payment from Borrowers for any such amount attributable to any particular period shall not constitute a waiver of Agent’s or any Lender’s right to demand payment of such amount for that period or any subsequent or prior period.
(d)With respect to any participant or assignee under Article VIII and this Section 2.13 「change in any applicable law, regulation or treaty, or in the interpretation or administration thereof」 shall be compared to the law at the time such participant or assignee became a participant or assignee, as the case may be, and not based on the law as of the date hereof.
14.Changes in Law Regarding Taxation of Mortgaged Property. In the event of the passage after the date hereof of any law deducting from the value of real property for the purpose of taxation any Lien or encumbrance thereon or changing in any way the laws for the taxation of deeds of trust, mortgages or debts secured by deeds of trust or mortgages or the manner of the collection of any such taxes, and imposing a tax, either directly or indirectly, on any Note, the Mortgage or any other Loan Document, Borrowers shall to the extent permitted by law pay any tax imposed as a result of any such law plus such amount as shall be sufficient to compensate Lenders for any tax imposed upon it in consequence of any such payment within ten (10) days after demand by Agent, provided, that if, in the reasonable opinion of Agent’s Counsel, Borrowers are not permitted by law to pay such taxes, Agent shall have the right, at its option, by notice to Borrowers, to declare the Loan to be and become due and payable not less than ninety (90) days after the giving of such notice.
15.Usury. This Agreement, the Note and the other Loan Documents are subject to the express condition that at no time shall Borrowers be required to pay interest on the Outstanding Principal Balance at a rate which could subject Agent or any Lender to either civil or criminal liability as a result of being in excess of the Maximum Legal Rate. If, by the terms of this Agreement or the other Loan Documents, Borrowers are at any time required or obligated to pay interest on the Outstanding Principal Balance at a rate in excess of the Maximum Legal Rate, then the Interest Rate shall be deemed to be immediately reduced to the Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. All sums paid or agreed to be paid to Agent or any Lender for the use, forbearance, or detention of the sums due under the Loan, shall, to the extent permitted by applicable Legal Requirements, be amortized, prorated, allocated and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the Loan does not exceed the Maximum Legal Rate from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.
78
49289660

16.Fees.
(a)Borrowers shall pay to Agent the fees and expenses payable in accordance with the terms of the Loan Fee Letter.
(b)Upon any repayment or prepayment of the Loan in full (including in connection with an acceleration of the Loan)(other than pursuant to Section 2.6 hereof), Borrowers shall pay to Agent on the date of such repayment or prepayment (or acceleration of the Loan) the Prepayment Fee. The Prepayment Fee shall be deemed to be earned by Lenders upon the closing of the Loan.
17.Extensions of Term.
(a)Generally. Subject to the conditions set forth in this Section 2.17, Borrowers shall have three (3) options (each, an “Extension Option”) to extend the then existing Maturity Date. The first option shall be exercisable as provided in Section 2.17(b) and shall extend the Initial Maturity Date (such extension period is referred to herein as the “First Extension Term”) to January 1, 2028 (the “First Extended Maturity Date”). The second option shall be exercisable as provided in Section 2.17(c) and shall extend the First Extended Maturity Date (such extension period is referred to herein as the “Second Extension Term”) to January 1, 2029 (the “Second Extended Maturity Date”). The third option shall be exercisable as provided in Section 2.17(d) and shall extend the Second Extended Maturity Date (such extension period is referred to herein as the “Third Extension Term”) to January 1, 2030 (the “Final Maturity Date”).
(b)Conditions to First Extension Term. Borrowers’ option to extend the Term until the expiration of the First Extension Term as referred to in Section 2.17(a) shall be subject to the following conditions being satisfied on or prior to the Initial Maturity Date (or such earlier other date as may be expressly provided):
(i)Borrowers shall have delivered a written notice to Agent of Borrowers’ election to so extend such Term no later than thirty (30) days prior to the Initial Maturity Date, which notice shall be irrevocable as of two (2) Business Days prior to the Initial Maturity Date;
(ii)All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Loan Documents on or before the Initial Maturity Date, and all costs and expenses of Agent, including Agent’s Counsel Fees, in connection with the Loan and/or such extension of such Term shall have been paid in full;
(iii)[intentionally left blank];
(iv)Final Completion of the Phase Zero Renovation Project, PIP Project Phase 1 and PIP Project Phase 2 shall have occurred;
(v)Borrowers shall either have (A) caused the terms of the Interest Rate Protection Agreement to be Modified or caused a new or supplemental Interest Rate Protection Agreement to be entered into in accordance with the applicable terms of Section 2.9 (with (i) the term of the Interest Rate Protection Agreement ending no earlier than the last day of the Extension Term; (ii) the notional amount equal to the notional amount not less than the then Outstanding Principal Balance and a notional amount schedule based upon the Rate Cap Notional Amount Schedule; and (iii) a strike rate equal to the Strike Price and (B) delivered a copy of the transaction confirmation, an ISDA Master Agreement or equivalent and any other documents reasonably requested by
79
49289660

Agent, all of which shall evidence Borrowers’ compliance with the preceding clause (A) of this clause;
(vi)No monetary Default, material non-monetary Default (of which notice has been given by Agent) or Event of Default shall have occurred and be continuing on the Initial Maturity Date;
(vii)The representations and warranties made in the Loan Documents (other than by Agent or a Lender) shall be true and correct in all material respects on and as of the Initial Maturity Date with the same force and effect as if made on and as of such date except for any representations or warranties made by Borrowers herein or by Borrowers and/or any other Credit Party in the other Loan Documents which are no longer true and correct in all material respects solely as a result of the occurrence of an event after the date on which such representations and warranties were then most recently made, which event does not constitute a Default or Event of Default and which such representations and warranties shall be updated to reflect the changes since the date on which such representations and warranties were then most recently made, and remade as so updated as of the Initial Maturity Date;
(viii)the Debt Yield (after giving effect to any prepayment of the Loan in accordance with Section 2.4, if applicable) as of the Initial Maturity Date shall be equal to or less than twelve percent (12.00%);
(ix)Borrowers shall have made a deposit into the Sub-Accounts in the amounts required hereunder as of the Initial Maturity Date;
(x)The Hotel Management Agreement shall remain in full force and effect and no defaults of which Borrower shall have received notice remain uncured (beyond any notice and cure periods) thereunder; and
(xi)Borrowers shall have delivered to Agent at least two (2) Business Days prior to such Initial Maturity Date a certificate from Borrowers in form and content reasonably satisfactory to Agent, certifying as to the matters set forth in clauses (ii) through (x) of this Section 2.17(b).
(c)Conditions to Second Extension Term. Borrowers’ option to extend the Term until the expiration of the Second Extension Term as referred to in Section 2.17(a) shall be subject to the following conditions being satisfied on or prior to the last Business Day of the First Extension Term (or such earlier other date as may be expressly provided):
(i)Borrowers shall have delivered a written notice to Agent of Borrowers’ election to so extend such Term no later than thirty (30) days prior to the First Extended Maturity Date, which notice shall be irrevocable as of two (2) Business Days prior to the First Extended Maturity Date;
(ii)All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Loan Documents on or before the First Extended Maturity Date, and all costs and expenses of Agent, including Agent’s Counsel Fees, in connection with the Loan and/or such extension of such Term shall have been paid in full;
(iii)On the First Extended Maturity Date, Borrowers shall pay to Agent, for the ratable benefit of Lenders, a non-refundable extension fee of one-fourth of one percent (0.25%) times the sum of the Outstanding Principal Balance (after giving
80
49289660

effect to any prepayment of the Loan in accordance with Section 2.4 hereof, if applicable);
(iv)Intentionally left blank;
(v)Borrowers shall either have (A) caused the terms of the Interest Rate Protection Agreement to be Modified or caused a new or supplemental Interest Rate Protection Agreement to be entered into in accordance with the applicable terms of Section 2.9 (with (i) the term of the Interest Rate Protection Agreement ending no earlier than the last day of the Extension Term; (ii) notional amount not less than the then Outstanding Principal Balance and a notional amount schedule based upon the Rate Cap Notional Amount Schedule; and (iii) a strike rate equal to the Strike Price and (B) delivered a copy of the transaction confirmation, an ISDA Master Agreement or equivalent and any other documents reasonably requested by Agent, all of which shall evidence Borrowers’ compliance with the preceding clause (A) of this clause;
(vi)No monetary Default, material non-monetary Default (of which notice has been given by Agent) or Event of Default shall have occurred and be continuing on the First Extended Maturity Date;
(vii)The representations and warranties made in the Loan Documents (other than by Agent or a Lender) shall be true and correct in all material respects on and as of the First Extended Maturity Date with the same force and effect as if made on and as of such date except for any representations or warranties made by Borrowers herein or by Borrowers and/or any other Credit Party in the other Loan Documents which are no longer true and correct in all material respects solely as a result of the occurrence of an event after the date on which such representations and warranties were then most recently made, which event does not constitute a Default or Event of Default, and which such representations and warranties shall be updated to reflect the changes since the date on which such representations and warranties were then most recently made, and remade as so updated as of the First Extended Maturity Date;
(viii)the Debt Yield (after giving effect to any prepayment of the Loan in accordance with Section 2.4, if applicable) as of the First Extended Maturity Date shall be equal to or less than twelve and one-quarter percent (12.25%);
(ix)Borrowers shall have made a deposit into the Sub-Accounts in the amounts required hereunder as of the First Extended Maturity Date;
(x)The Hotel Management Agreement shall remain in full force and effect and no defaults of which Borrower shall have received notice remain uncured (beyond any notice and cure periods) thereunder; and
(xi)Borrowers shall have delivered to Agent at least two (2) Business Days prior to such First Extended Maturity Date a certificate from Borrower in form and content reasonably satisfactory to Agent, certifying as to the matters set forth in clauses (ii) through (x) of this Section 2.17(c).
(d)Conditions to Third Extension Term. Borrowers’ option to extend the Term until the expiration of the Third Extension Term as referred to in Section 2.17(a) shall be subject to the following conditions being satisfied on or prior to the last Business Day of the Second Extension Term (or such earlier other date as may be expressly provided):
81
49289660

(i)Borrowers shall have delivered a written notice to Agent of Borrowers’ election to so extend such Term no later than thirty (30) days prior to the Second Extended Maturity Date, which notice shall be irrevocable as of two (2) Business Days prior to the Second Extended Maturity Date;
(ii)All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Loan Documents on or before the Second Extended Maturity Date, and all costs and expenses of Agent, including Agent’s Counsel Fees, in connection with the Loan and/or such extension of such Term shall have been paid in full;
(iii)On the Second Extended Maturity Date, Borrowers shall pay to Agent, for the ratable benefit of Lenders, a non-refundable extension fee of one-fourth of one percent (0.25%) times the sum of the Outstanding Principal Balance (after giving effect to any prepayment of the Loan in accordance with Section 2.4 hereof, if applicable);
(iv)Borrowers shall either have (A) caused the terms of the Interest Rate Protection Agreement to be Modified or caused a new or supplemental Interest Rate Protection Agreement to be entered into in accordance with the applicable terms of Section 2.9 (with (i) the term of the Interest Rate Protection Agreement ending no earlier than the last day of the Extension Term; (ii) the notional amount equal to the Loan Amount (less any amounts prepaid); and (iii) a strike rate equal to the Strike Price and (B) delivered a copy of the transaction confirmation, an ISDA Master Agreement or equivalent and any other documents reasonably requested by Agent, all of which shall evidence Borrowers’ compliance with the preceding clause (A) of this clause;
(v)No monetary Default, material non-monetary Default (of which notice has been given by Agent) or Event of Default shall have occurred and be continuing on the Second Extended Maturity Date;
(vi)The representations and warranties made in the Loan Documents (other than by Agent or a Lender) shall be true and correct in all material respects on and as of the Second Extended Maturity Date with the same force and effect as if made on and as of such date except for any representations or warranties made by Borrowers herein or by Borrowers and/or any other Credit Party in the other Loan Documents which are no longer true and correct in all material respects solely as a result of the occurrence of an event after the date on which such representations and warranties were then most recently made, which event does not constitute a Default or Event of Default, and which such representations and warranties shall be updated to reflect the changes since the date on which such representations and warranties were then most recently made, and remade as so updated as of the Second Extended Maturity Date;
(vii)the Debt Yield (after giving effect to any prepayment of the Loan in accordance with Section 2.4, if applicable) as of the Second Extended Maturity Date shall be equal to or less than twelve and one-quarter percent (12.25%);
(viii)Borrowers shall have made a deposit into the Sub-Accounts in the amounts required hereunder as of the Second Extended Maturity Date;
(ix)The Hotel Management Agreement shall remain in full force and effect and no defaults of which Borrower shall have received notice remain uncured (beyond any notice and cure periods) thereunder; and
82
49289660

(x)Borrowers shall have delivered to Agent at least two (2) Business Days prior to such Second Extended Maturity Date a certificate from Borrower in form and content reasonably satisfactory to Agent, certifying as to the matters set forth in clauses (ii) through (x) of this Section 2.17(d).
18.Release of Property Upon Repayment in Full.
(a)Agent shall, upon the written request and at the expense of Borrowers and subject to the further provisions of Section 2.18(b), upon payment in full of the Obligations in accordance with the terms and provisions of the Loan Documents, release the Lien of the Mortgage (or, upon Borrowers’ request, assign it to a new lender) and terminate the Assignment of Leases; provided that Borrowers shall pay any costs, taxes and expenses incurred by Agent and Lender in connection therewith, and Agent’s and Lender’s reasonable attorneys’ fees for the preparation and delivery of the release or assignment documentation. In connection with such release or assignment, Agent and/or Lender shall deliver such other documentation reasonably requested by Borrowers, including, without limitation, documentation evidencing the termination of all collateral assignment documents, account control arrangements and standing orders (provided that Borrowers shall pay all of Lender and/or Agent’s expenses incurred in connection with the same).
(b)In connection with the release or assignment of the Mortgage and the Assignment of Leases, Borrowers shall submit to Agent, not less than five (5) Business Days prior to the date on which Borrowers intend to pay the Obligations in full, a release or assignment of Mortgage and Assignment of Leases for the Mortgaged Property. Such release or assignment shall (i) be in a form appropriate for recording in the jurisdiction in which the Mortgaged Property is located, (ii) be reasonably satisfactory to Agent and (iii) contain such provisions as may be reasonably requested by Agent, if any, protecting the rights of Agent. In addition, Borrowers shall provide all other documentation (including, without limitation, UCC-3 financing statements) Agent reasonably requires to be delivered by Borrowers in connection with such release or assignment of the Mortgage and Assignment of Leases and other Loan Documents, as well as an Officer’s Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such release or assignment in accordance with the terms of this Agreement. Borrowers shall pay all costs, taxes and expenses associated with the release or assignment of the Lien of the Mortgage, including Agent’s reasonable attorneys’ fees.
19.Required Closing Equity Funds. On or prior to the Closing Date, Agent shall have received evidence that (i) indirect investors of Borrowers have, collectively, contributed at least $3,834,023.79 in cash equity (which cash equity was not obtained through any borrowings as to which the Mortgaged Property was collateral) (the “Required Closing Equity Amount”), and (ii) after giving effect to the transactions described in this Agreement, the Required Closing Equity Amount remains invested in the Property as of the Closing Date.
20.Phase Zero Renovation Advances and PIP Advances.
1.Generally. Lenders shall, at the request of Borrowers and upon the satisfaction of all applicable conditions set forth in this Section 2.20, make Advances with respect to Phase Zero Renovation Costs and PIP Costs, as applicable (each, a “Phase Zero Renovation Advance” or a “PIP Advance”, respectively) from time to time under the Note and this Agreement in an aggregate amount not to exceed the Phase Zero Renovation Advance Maximum Amount and PIP Advance Maximum Amount, as applicable. The obligation of Lenders to make Phase Zero Renovation Advances and/or PIP Advances shall be subject to the applicable conditions precedent set forth in below in this Section 2.20, all of which applicable conditions precedent must be satisfied prior to Lenders making any such Phase Zero Renovation
83
49289660

Advance and/or PIP Advance, respectively (the conditions set forth in this Section 2.20 are collectively referred to as the “Advance Conditions”).
(a)Approved Renovation/PIP Expenses. Such Advance must be made for the purposes of paying Approved Renovation/PIP Expenses incurred in connection with the Phase Zero Renovation Project and/or PIP Project, as applicable (and the same shall have been substantiated in a manner reasonably satisfactory to Agent).
(b)Draw Request. Borrowers shall have submitted to Agent, a written request for such Phase Zero Renovation Advance or PIP Advance, delivered not less than ten (10) Business Days prior to the requested date of funding (each, a “Draw Request”) and shall be accompanied by (A) an Officer’s Certificate from Borrowers stating and certifying that: (1) the items to be funded by the requested Phase Zero Renovation Advance and/or PIP Advance are Approved Renovation/PIP Expenses, and a description thereof, (2) the work related to such Approved Renovation/PIP Expenses to be funded by the requested Phase Zero Renovation Advance and/or PIP Advance (or the relevant portion thereof as to which such request for funds relates) has been completed in a good and workmanlike manner and in accordance with all applicable Legal Requirements in all material respects, (3) the Approved Renovation/PIP Expenses (or the relevant portions thereof) to be funded from the Phase Zero Renovation Advance and/or PIP Advance in question have not been the subject of a previous Phase Zero Renovation Advance and/or PIP Advance, (4) all previous disbursements of Phase Zero Renovation Advances and/or PIP Advances have been used to pay the previously identified Approved Renovation/PIP Expenses and have been paid in full and (5) Borrowers have paid or has provided Agent with evidence reasonably satisfactory to Agent that Borrowers are paying Borrowers’ Share of the Approved Renovation/PIP Expenses that are the subject of the Phase Zero Renovation Advance and/or PIP Advance in question prior to or simultaneously with funding of the applicable Phase Zero Renovation Advance and/or PIP Advance; (B) copies of all licenses, permits and other approvals by any Governmental Authority required in connection with the work related to such Approved Renovation/PIP Expenses and not previously delivered to Agent; (C) copies of all invoices with respect to which such Phase Zero Renovation Advance and/or PIP Advance is being requested; and (D) such other evidence as Agent shall reasonably request to demonstrate that any work to be funded by the requested Phase Zero Renovation Advance and/or PIP Advance is paid for or will be paid upon such disbursement to Borrowers (or the portion thereof as to which such request for disbursement has been submitted has been completed and is paid for (other than any retention amount which is not a part of such disbursement request) or will be paid upon such disbursement to Borrowers), and that Borrowers have paid Borrowers’ Share of the Approved Renovation/PIP Expenses that are the subject of the Phase Zero Renovation Advance and/or PIP Advance or such amounts will be paid simultaneously with disbursement of the applicable Phase Zero Renovation Advance and/or PIP Advance.
(c)Phase Zero Renovation Project/ PIP Project. Borrowers shall have delivered, and Agent shall have approved, customary deliverables required in connection with such Phase Zero Renovation Project and/or PIP Project, as applicable being performed by the applicable Borrower and related to such Advance being made, including plans and specifications, copies of all construction contracts and design professional agreements, all Licenses required with respect to such work, and any other items reasonably requested by Agent with respect to the
84
49289660

Phase Zero Renovation Project and/or PIP Project, as applicable being performed by the applicable Borrower which is the subject of such Advance.
(d)Hotel Management Agreement. The Hotel Management Agreement shall remain in full force and effect and no defaults for which Borrower shall have received notice remain uncured (beyond any notice and cure periods) thereunder.
(e)Interest Rate Protection Agreement. If the Outstanding Principal Balance after the funding of the Advance in question will exceed the then-applicable notional amount under the Interest Rate Protection Agreement or Replacement Interest Rate Protection Agreement, then, in connection with (and as a condition to) such Advance, Borrowers shall amend, modify and/or replace such Interest Rate Protection Agreement or Replacement Interest Rate Protection Agreement (or Rate Cap Notional Amount Schedule) such that the notional amount under such replacement Interest Rate Protection Agreement or Replacement Interest Rate Protection Agreement shall not be less than the Outstanding Principal balance after giving effect to such Advance.
(f)Lien Waivers. Agent shall have received duly executed lien waivers, which shall be conditional lien waivers (for payments to be made from the pending Advance) and unconditional lien waivers (for all payments from prior Advances), as applicable, in form reasonably acceptable to Agent, from all Contractors for all work performed with respect to the Approved Renovation/PIP Expenses, and all labor or material supplied prior to the date of such Advance, other than lien waivers with respect to amounts that are being contested in accordance with Section 5.8.
(g)Title Endorsement. Agent shall have received (i) a notice of title continuation showing that since the funding of the last Advance there has been (other than Permitted Encumbrances) no adverse change in the state of title to the Property and no new survey exceptions with respect to the Property not theretofore approved by Agent, together with other evidence satisfactory to Agent that no mechanic’s Liens or other Liens have been filed and remain filed with respect to the Property and (ii) a 「date down」 endorsement to the Title Insurance Policy in form reasonably satisfactory to Agent or in the form attached hereto as Exhibit D.
(h)Further Documents. Agent shall have received such documents, letters, affidavits, reports, information and assurances, as Agent, Agent’s counsel or the Construction Consultant may reasonably require.
(i)Final Renovation/PIP Costs Advance. With respect to the final Phase Zero Renovation Advance for the Phase Zero Renovation Project, Agent shall have received confirmation from its Construction Consultant that Final Completion of the Phase Zero Renovation Project has occurred, or Agent shall have received an estoppel letter from Hotel Manager stating that the Phase Zero Renovation Project has been fully and satisfactorily completed in accordance with the Hotel Management Agreement. With respect to the final PIP Advance relating to the PIP Project Phase 1 and PIP Project Phase 2, Agent shall have received a 「Renovation Verification Letter」 (as such term is defined in the 2025 Hotel Management
85
49289660

Agreement) from the Hotel Manager stating that such Hotel Manager has confirmed that the PIP Project Phase 1 and PIP Project Phase 2, as applicable, has been fully and satisfactorily completed in accordance with the Hotel Management Agreement.
(j)Maximum Advance Amount for Approved Renovation/PIP Expenses. In no event shall Lenders (x) Advance more than the Phase Zero Renovation Advance Maximum Amount towards Approved Phase Zero Renovation Expenses, (y) Advance more than the PIP Advance Maximum Amount towards Approved PIP Expenses, and (z) Advance more than Lender’s Share of the Approved Renovation/PIP Expenses set forth in the applicable Draw Request.
(k)Borrower Equity. Prior to and as a condition to each Advance, Borrowers shall pay Borrowers’ Share of the Approved Renovation/PIP Expenses that are the subject of the Phase Zero Renovation Advance and/or PIP Advance in question or provide Agent with evidence reasonably satisfactory to Agent that Borrowers are paying Borrowers’ Share of the Approved Renovation/PIP Expenses that are the subject of the Phase Zero Renovation Advance and/or PIP Advance in question simultaneously with funding of the applicable Phase Zero Renovation Advance and/or PIP Advance; provided that amounts on deposit in the FF&E Reserve Sub-Account and Key Money Reserve Sub-Account shall first be used, and disbursed by Agent, to satisfy Borrowers’ Share of the Approved PIP Expenses and/or Borrowers’ Share of the Approved Phase Zero Renovation Expenses.
(l)PIP Project. With respect to the first Advance for any portion of the PIP Project, Agent shall have received and reasonably approved a construction schedule for the PIP Project.
(m)No Default; No Renovation/PIP Costs Shortfall. On the date of any request for an Advance and on the date of such Advance, no monetary Default, material non-monetary Default (of which notice has been given by Agent) or Event of Default is continuing and no Renovation/PIP Costs Shortfall is continuing.
(n)Representations and Warranties. All representations and warranties made by each Credit Party in the Loan Documents or otherwise made by or on behalf of any Credit Party in connection therewith shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade on the date of such Advance (unless the same solely relate to a different time period), except for any representations or warranties made by Borrowers herein or by Borrowers and/or any other Credit Party in the other Loan Documents which are no longer true and correct in all material respects solely as a result of the occurrence of an event after the date on which such representations and warranties were then most recently made, which event does not constitute a Default or Event of Default.
(o)Intentionally Left Blank.
(p)Advance Mechanics. Lenders shall have no obligation to make, and Borrowers shall have no right to receive, Advances more often than once in each calendar month
86
49289660

and the aggregate amount of each Advance (other than the final Advance) shall be in an amount of not less than $100,000.00.
(q)Costs and Expenses. Borrowers shall have paid in full (i) all of Agent’s and Lender’s reasonable out-of-pocket costs and expenses incurred in connection with such Advance and (ii) all title premiums and other title and survey charges, if applicable.
2.Disbursement of Advances. So long as the applicable conditions to Advances are satisfied, Lenders shall fund to Borrowers Advances for Approved Renovation/PIP Expenses in accordance with and subject to the limitations set forth in this Section 2.20. Lenders shall not be required to make any Advance if any of the applicable Advance Conditions are not satisfied or waived by Agent in its sole discretion. Any Advance disbursed by a Lender (whether the same are disbursed to Borrowers or directly to a third-party) shall be added to the Outstanding Principal Balance and shall constitute a portion of the Obligations.
3.Advances Do Not Constitute a Waiver. No Advance (i) made prior to or without the fulfillment by Borrowers of all of the applicable conditions precedent thereto, whether or not known to Agent or Lender, shall constitute a waiver by Agent or Lender of the requirement that all conditions, including the non-performed conditions, shall be required with respect to all Advances, and (ii) shall constitute a waiver of any of the conditions of Lenders’ obligation to make further Advances nor, in the event Borrowers are unable to satisfy any such condition, shall any Advance have the effect of precluding Agent from thereafter declaring such inability to be an Event of Default hereunder.
4.Payments Directly to Contractors and Subcontractors. If an Event of Default is continuing, in connection with any Advance with respect to costs which have been incurred and requested by Borrowers but which have not yet been paid, Agent may, if Agent elects to do so in its reasonable discretion, make payments for the costs incurred for such Approved Renovation/ PIP Expenses directly to any applicable contractor, subcontractor, materialman or vendor of fixtures or equipment. The execution of this Agreement by Borrowers shall, and hereby does, constitute an irrevocable direction and authorization to so disburse any such Advance. No further direction or authorization from Borrowers shall be necessary or required for such direct disbursements and all such disbursements shall satisfy pro tanto the obligations of Lenders hereunder and shall be secured by the applicable Loan Documents as fully as if made directly to Borrowers, regardless of the disposition thereof by the payee.
5.Lender’s Right to Employ Consultant. If Borrowers elect to extend the Term in accordance with Section 2.17(a), Agent may engage the Construction Consultant to verify the satisfaction of the conditions relating to completion or stage of completion of the applicable Project, and all reasonable out-of-pocket costs and expenses incurred by Agent with respect to the Construction Consultant shall be paid by Borrowers.
6. Inspections. Borrowers shall permit Agent and Agent’s agents and representatives or independent contractors hired by Agent (including the consultant, engineer, architect or inspector) to enter onto the Property, subject to the rights of Hotel Manager (and the provisions of the Hotel Management Agreement) and hotel guests, during normal business hours following reasonable advance notice to (a) inspect the Property and all material to be used in connection with the applicable Project, any Approved Renovation/PIP Expenses, and/or any other work performed by or on behalf of Borrowers from time to time in connection with the applicable Project, (b) to examine all detailed plans and shop drawings in connection with the applicable Project and (c) meet with the representatives of any of the architects, engineers, or other design professionals and any contractors or subcontractors performing work by or on behalf of any Borrower to discuss the status and issues relating to the applicable Project (and by
87
49289660

this provision Borrowers authorize such architects, engineers, or other design professionals, and any contractors or subcontractors of Borrowers to cooperate and discuss with such persons such matters, but after prior written notice to Borrowers of such discussions). Borrowers shall cause all such contractors and subcontractors (including all Contractors) to cooperate with Agent and/or Agent’s representatives or such other Persons described above in connection with inspections described in this Section 2.20.6. Borrowers shall pay the out-of-pocket expense of the inspection as required hereunder, whether such inspection is conducted by Agent, the consultant or by an independent qualified professional architect.
7. No Obligation to do Work. Nothing in this Section 2.20 shall make Agent or any Lender responsible for performing or completing all or any portion of the work to be funded by an Advance or any other portion of the Project.
8.Insufficiency of Loan Proceeds. At any time and from time to time during the term of the Loan, Agent shall have the right (but not the obligation) to notify Borrowers in writing (each, a “Renovation/PIP Costs Shortfall Notice”) that, as determined in Agent’s sole but good faith discretion, the cost of all Approved Renovation/PIP Expenses necessary to achieve Final Completion of both the Phase Zero Renovation Project and PIP Project that remain unpaid at the time in question exceeds the sum of (i) the undisbursed proceeds of the all Phase Zero Renovation Advances and PIP Advances, (ii) amounts on deposit in the Renovation/PIP Costs Rebalancing Reserve Sub-Account and the Key Money Reserve Sub-Account, and (iii) all remaining Future Equity Contributions to be made together therewith (the amount of any such deficiency being herein referred to as the “Renovation/PIP Costs Shortfall”). If Agent at any time shall deliver a Renovation/PIP Costs Shortfall Notice to Borrowers, Borrowers shall fund one hundred percent (100%) of all subsequent Approved Renovation/PIP Expenses out of cash equity funded to Borrowers by the direct and indirect owners of Borrowers and Lender shall have no obligation to fund any Advances until such time as the Renovation/PIP Costs Shortfall no longer exists; provided, that, upon the occurrence of an Event of Default, Borrowers shall be required to deposit funds with Lender in a Sub-Account (the “Renovation/PIP Costs Rebalancing Reserve Sub-Account”) an amount equal to such Renovation/PIP Costs Shortfall (or the remaining portion thereof that has not been previously funded by Borrowers) within ten (10) Business Days of such Event of Default. During an Event of Default, Agent, in its sole discretion, may apply such amounts either to the remaining Approved Renovation/PIP Expenses or to the immediate payment of any Obligations of Borrowers. No Lender shall have any obligation to fund any Advances so long as there are funds on deposit in the Renovation/PIP Costs Rebalancing Reserve.
Article III
REPRESENTATIONS AND WARRANTIES
To induce Lenders to make the Loan and to induce Lenders and Agent to enter into this Agreement and to perform Lenders’ and Agent’s obligations hereunder, each Borrower hereby represents and warrants to Agent and Lenders as of the date hereof (or, to the extent that the representations and warranties in this Article III are to be remade or deemed remade as of a certain date as provided in this Agreement, the same shall be remade as of such date) as follows (which representations and warranties shall survive the execution and delivery of this Agreement and the other Loan Documents, regardless of any investigation made by Agent or Lenders or on its or their behalf):
1.Due Organization. Each Borrower is a limited liability company duly organized and validly existing under the laws of the State of Delaware. Each Borrower is duly qualified to do business in the State of California as a foreign limited liability company. Guarantor is
88
49289660

qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with its properties, businesses and operations, except where the failure to be so qualified would not have a Material Adverse Effect. Each Borrower has all necessary power and authority to own its Mortgaged Property, to conduct its business as presently conducted or proposed to be conducted and to enter into and perform its obligations under this Agreement, the other Loan Documents, each Management Agreement, and all other agreements and instruments to be executed by such Borrower in connection herewith and therewith.
2.Due Execution. This Agreement, the other Loan Documents and each Management Agreement to which each applicable Credit Party is a party have been duly executed and delivered by each applicable Credit Party, and all necessary actions have been taken to authorize each applicable Credit Party to perform its obligations hereunder and thereunder.
3.Enforceability. This Agreement and the other Loan Documents to which each Credit Party or its properties are bound constitute legal, valid and binding obligations of such Credit Party enforceable against such Credit Party, except as such enforceability may be affected by applicable bankruptcy, insolvency, moratorium and similar laws affecting rights of creditors generally, and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or law) and an implied consent of good faith and fair dealing.
4.No Violation. The consummation of the transactions herein contemplated and the execution, delivery and performance by each Credit Party of its obligations under this Agreement, the other Loan Documents, each Management Agreement, and all other agreements and instruments to be executed by Borrower or any other Credit Party in connection herewith and therewith do not and will not (a) violate any Legal Requirement, (b) result in a breach of any of the terms, conditions or provisions of, or constitute a default under any Leases, any Management Agreement, or any other agreement, permit, franchise, license, note or instrument to which Borrower or any other Credit Party is a party or by which it and any such Person or any of its respective properties are bound, (c) result in the creation or imposition of any deed of trust, Lien, charge or encumbrance of any nature whatsoever upon any of the assets of any Borrower or any other Credit Party (except as contemplated by this Agreement and by the other Loan Documents), or (d) violate any provision of any Organizational Documents of any Borrower or any other Credit Party. No Credit Party is in default with respect to any Legal Requirement relating to its formation or organization.
5.No Litigation. There are no actions, suits or proceedings at law or in equity or before or instituted by any Governmental Authority (a) pending or, to Borrowers’ knowledge, threatened in writing against or affecting any Borrower, any other Credit Party or all or any portion of the Mortgaged Property (including any condemnation or eminent domain proceeding against all or any portion of the Mortgaged Property and/or any landlord/tenant proceedings affecting the Mortgaged Property) that could reasonably be expected to result in a Material Adverse Effect; or (b) pending or, to Borrowers’ knowledge, threatened in writing, which affect or is reasonably likely to affect the validity or enforceability of any Security Document (or the priority of the Lien thereof), any of the other Loan Documents, any of the Leases, or any Management Agreement.
6.No Default or Event of Default. No Default or Event of Default has occurred and is continuing.
7.Offsets, Defenses, Etc. No Credit Party has any right of rescission, offsets, defenses (including the defense of usury) or counterclaims against its obligations under this Agreement or any other Loan Document, any and all such rescission rights, offsets, defenses and counterclaims, if any, being waived by Borrowers.
89
49289660

8.Agreements: Consents. No Credit Party is party to any contract or agreement where the performance by such Credit Party of its obligations and duties under such contract or agreement in accordance with the terms thereof could reasonably be expected to have a Material Adverse Effect. Except for Permitted Indebtedness and Permitted Encumbrances, no Borrower has any material financial obligation (contingent or otherwise) under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which any Borrower or the Mortgaged Property is otherwise bound, other than (a) obligations incurred in the ordinary course of the operation of the Mortgaged Property and (b) obligations under the Loan Documents. All consents, approvals, orders or authorizations of, or registrations, declarations or filings with, or other actions with respect to or by, any Governmental Authorities and/or any Permitted Encumbrance that are required in connection with the valid execution, delivery and performance by any Credit Party of the Loan Documents to which such Credit Party is a party, or the Hotel Management Agreement or Garage Management Agreement and all other agreements and instruments to be executed by any Credit Party in connection herewith or therewith have been obtained and are in full force and effect, except for those consents the failure to obtain would not have a Material Adverse Effect. All certifications, permits, licenses and approvals, including without limitation, certificates of completion and occupancy permits required of each Borrower for the legal use, occupancy and operation of the Mortgaged Property as currently used, occupied and operated have been obtained and are in full force and effect, except for those the failure of which to obtain and maintain in full force and effect would not constitute a Material Adverse Effect.
9.Use. The present and anticipated use of the Mortgaged Property during the Term of the Loan complies (or in the case of anticipated uses, will comply) in all material respects with all Legal Requirements, including all applicable zoning ordinances and regulations, building codes, the Hotel Management Agreement, Parking Garage Lease, Garage Management Agreement, all Permitted Encumbrances and the Operations Agreements. The Hotel Property is used exclusively for hotel use and other appurtenant and related uses. The Garage Property is used exclusively for garage and retail use and other appurtenant and related uses.
10.Representations, Warranties and Certifications of Others. The representations, warranties and certifications of each Credit Party set forth in the Loan Documents are true, correct and complete.
11.Financial Statements and Other Information. All statements of financial condition and related schedules of any Credit Party heretofore delivered to Agent in connection with the Loan are true, correct and complete in all material respects, fairly present the financial conditions of the subjects thereof as of the respective dates thereof and have been prepared in accordance with GAAP and/or USALI or as otherwise may be approved by Agent, which approval shall not be unreasonably withheld, conditioned or delayed. No material adverse change has occurred in the financial conditions reflected in the most recent of the aforesaid statements of financial condition and related schedules since the respective dates thereof. Neither the aforesaid statements of financial condition and related schedules nor any certificate, statement, document or information furnished to Agent, Agent’s counsel or to any other Person at the request of Agent by or on behalf of any Credit Party or any Affiliate of any Credit Party in connection with or related to the transactions contemplated hereby, nor any representation or warranty in this Agreement or any other Loan Document, contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein or herein not misleading. Each Credit Party is able to pay its respective debts and other obligations when due, and each has a positive net worth.
12.Full Disclosure. There is no material fact known to any Borrower pertaining to any Credit Party or the Mortgaged Property or the Collateral that Borrowers have not disclosed to Agent which would have a material adverse effect on such Person’s business, property,
90
49289660

including the Mortgaged Property, the Collateral, assets, operations, condition (financial or otherwise) taken as a whole or which would materially and adversely affect such Person’s ability to perform its respective obligations under this Agreement or any other Loan Document.
13.Contracts.
(a)No Borrower has entered into, and is not bound by, any Material Agreement which continues in existence, except for the Operations Agreements, the Permitted Encumbrances, the General Contractor’s Agreement and the Architect’s Contract.
(b)Each Material Agreement is in full force and effect, there are no monetary or other material defaults by any Borrower thereunder and, to the knowledge of Borrowers, there are no monetary or other material defaults beyond applicable notice, cure and grade periods thereunder by any other party thereto. None of any Borrower, Hotel Manager, Parking Manager or any other Person acting on any Borrower’s behalf has given or received any notice of default under any of the Material Agreements that remains uncured or in dispute.
(c)Borrower has delivered true, correct and complete copies of the Material Agreements (including all amendments and supplements thereto) to Agent.
(d)As of the Closing Date, no contract to which a Borrower is a party is with a Person that is an Affiliate of any Borrower, other than with another Borrower, or the Garage Management Agreement.
14.Indebtedness. No Borrower is currently indebted or in contract for any Indebtedness, nor is otherwise liable in respect of any Indebtedness, other than the Permitted Indebtedness and no Borrower is holding out its credit as being available to satisfy the obligations of any other Person other than another Borrower.
15.Insurance Policies. The Insurance Policies required to be maintained pursuant to this Agreement and the other Loan Documents are in full force and effect.
16.Availability of Utilities and Access. All utility services and facilities necessary for the use, occupancy and operation of the Improvements on the Land are available at the boundaries of the Mortgaged Property, including water supply, storm and sanitary sewer facilities, gas and electric and telephone facilities. There is direct physical access to and from at least one public road.
17.Title: No Liens. Each of Hotel Fee Borrower and Garage Fee Borrower has good and insurable fee interest in its respective Mortgaged Property and good and insurable fee interest in its respective Improvements, and Operating Lessee Borrower has good and insurable leasehold interest in the Hotel Property and good and insurable leasehold interest in the Hotel Property in each instance free and clear of all Liens whatsoever except for the Loan Documents and Permitted Encumbrances. Except for the Loan Documents, the Leases, and the Permitted Encumbrances, no Borrower has made, assumed or been assigned any contract or arrangement of any kind, the performance of which by the other party thereto would give rise to a Lien against all or any portion of the Collateral (other than inchoate mechanics’ liens securing amounts not yet delinquent). There exists no Lien on any direct equity or beneficial interest in any Borrower.
18.Compliance with Legal Requirements. The Legal Requirements, including zoning ordinances and regulations and building codes, permit the Mortgaged Property to be
91
49289660

restored (both to its existing use as of the Closing Date and to be renovated as contemplated pursuant to the Project) and the present and other uses intended by this Agreement to be continued following a Casualty, without need of any variance, special exception, special use permit or similar zoning approval. No Borrower knows of any reason why any Operating Permits necessary for the full use and occupancy of the Mortgaged Property will not be issued (or will not continue to be in full force and effect) once the applicable Project has been completed. There are no pending or, to Borrowers’ knowledge, threatened actions, suits or proceedings to revoke, attach, invalidate, rescind or modify the ordinances and regulations currently in effect and to which the Mortgaged Property are subject or any of the Operating Permits that have been issued and which are contemplated to exist upon completion of the applicable Project. Borrowers, the Mortgaged Property and the existing uses thereof comply in all material respects with all Legal Requirements, including all applicable zoning ordinances and regulations and applicable building codes.
19.Garage Management Agreement. The Garage Management Agreement is in full force and effect, not having been Modified, terminated, assigned or otherwise changed, or the provisions thereof waived, except as permitted hereunder and such agreements represent the entire agreement between the parties thereto with respect to the subject matter thereto. Borrowers have delivered to Agent true, correct and complete copies of the Garage Management Agreement and the Organizational Documents of each Borrower. No default or failure of performance in any material respect by any Borrower or, to Borrowers’ knowledge, any other Person, exists under the Garage Management Agreement or any Permitted Encumbrances and no event exists which, with the giving of notice or passage of time, or both, would constitute a default by any Borrower or, to Borrowers’ knowledge, any other Person under such agreements. To Borrowers’ knowledge, there are no offsets, claims or defenses to the enforcement by any Borrower of the Garage Management Agreement or any Permitted Encumbrance. No Borrower has received a notice of a material default under the Garage Management Agreement or any Permitted Encumbrance. Neither the Garage Management Agreement nor any Permitted Encumbrance contains any option to purchase or right of first refusal to purchase the Mortgaged Property, the Collateral or any part thereof.
20.Security Documents. The provisions of each Security Document are effective to create, in favor of Agent for the benefit of itself and Lenders, a legal, valid and enforceable Lien on or security interest in all of the Collateral described therein, and when the appropriate recordings and filings have been effected in public offices, each of the Security Documents will constitute a perfected Lien on and security interest in all right, title, estate and interest in the collateral described therein, prior and superior to all other Liens, except as permitted under the Loan Documents.
21.Casualty and Taking. No Casualty, which has not been restored, has occurred to any portion of the Mortgaged Property. No Taking of any portion of the Mortgaged Property, or modification, realignment or relocation of any streets or roadways abutting the Mortgaged Property or denial of access to the Mortgaged Property from any point of access (public or private), has occurred, is pending, or to Borrowers’ knowledge is threatened.
22.Operations Agreements. Each Operations Agreement is in full force and effect and no Borrower nor, to Borrowers’ knowledge, any other party to any Operations Agreement, is in default thereunder, and to the best of Borrowers’ knowledge, there are no conditions which, with the passage of time or the giving of notice, or both, would constitute a default thereunder.
23.Encroachments. Except as shown on the Survey, no Improvements on the Land (i) encroach upon any building line, setback line, side yard line, any Permitted Encumbrance or any other recorded easement or any visible easement or other easement of which any Borrower is aware or has reason to believe may exist, except in the case of encroachments which are
92
49289660

permitted pursuant to the Permitted Encumbrances currently in effect, or (ii) encroach over any property line of the Land, except for the encroachment of overhangs permitted in accordance with all Legal Requirements.
24.Foreign Person. No Borrower is a 「foreign person」 within the meaning of Section 1445 or 7701 of the Code.
25.Control Person. No Borrower is, and no Person having 「control」 (as that term is defined in 12 U.S.C. § 375b or in regulations promulgated pursuant thereto) of any Borrower is, an 「executive officer,」 「director,」 or 「person who directly or indirectly or in concert with one or more persons, owns, controls, or has the power to vote more than ten percent (10%) of any class of voting securities」 (as those terms are defined in 12 U.S.C. § 375b or in regulations promulgated pursuant thereto) of any Lender, of a bank holding company of which any Lender is a subsidiary, or of any other subsidiary of a bank holding company of which any Lender is a subsidiary.
26.Government Regulation. No Borrower is an 「investment company」 or a company 「controlled」 by an 「investment company,」 within the meaning of the Investment Company Act of 1940. No Borrower is engaged principally, or as one of its important activities, in the business of extending, or arranging for the extension of, credit for the purpose of 「purchasing or carrying any margin stock,」 within the meaning of Regulation U of the Board of Governors. No portion of the assets of any Borrower consists of any such margin stock, and no part of the proceeds of the Loan shall be used to purchase or carry any such margin stock within the meaning of said regulation or to extend credit to others for such purpose.
27.ERISA. Neither any Borrower nor any ERISA Affiliate has incurred any liability, and to the best of Borrowers’ knowledge, no action or event has occurred that could reasonably be expected to cause it to incur any liability, (A) with respect to any Pension Plan, including any liability under Section 412 of the Code or Title IV of ERISA, or (B) under Section 4201 of ERISA with respect to any Multiemployer Plan on account of a 「complete withdrawal」 (within the meaning of Section 4203 of ERISA) or a 「partial withdrawal」 (within the meaning of Section 4205 of ERISA) or (C) for unpaid contributions to any Multiemployer Plan. No Borrower has engaged in any transaction in connection with which it could be subject to either a material civil penalty assessed pursuant to the provisions of Section 502(i) of ERISA or a material tax imposed under the provisions of Section 4975 of the Code. None of the assets of any Borrower is deemed to be 「plan assets」 of any 「employee benefit plan」 (within the meaning of Section 3(3) of ERISA) which is subject to Title I of ERISA or 「plan」 (within the meaning of Section 4975(e)(1) of the Code) for purposes of the U.S. Department of Labor regulations codified at 29 CFR Section 2510.3-101 (“Plan Assets”) or Section 3(42) of ERISA.
28.Labor and Employment. There are no pending or threatened unfair labor practice complaints or charges, labor arbitrations, grievances, disputes or controversies with any union or any other labor organization or employee representative at the Property or arising out of or under any Collective Bargaining Agreement that is reasonably likely to have a material adverse effect. To Borrowers’ knowledge, there are no pending or threatened organizing activities or, other than with respect to ongoing negotiations to extend the Local 39 CBA, demands for collective bargaining by any union or other labor organization or group of employees. There is no strike, lockout, handbilling, picketing, or work stoppage in existence or, to Borrowers’ knowledge, threatened, that is reasonably likely to have a material adverse effect. The Collective Bargaining Agreements are in full force and effect, and Borrowers, and to Borrowers’ knowledge, Hotel Manager and their Affiliates (as applicable), are in compliance in all material respects with the terms, conditions, and obligations under the Collective Bargaining Agreements. Neither the transactions contemplated by the Loan Documents nor the entrance into the Loan Documents will constitute any breach of or default under any of the Collective Bargaining Agreements or
93
49289660

labor Law or give rise to any right of termination or right of renegotiation on the part of any union or other labor organization under any of the Collective Bargaining Agreements.

29.Name; Principal Place of Business. Borrowers do not use nor will they use any trade name and has not done nor will do business under any name other than such Borrower’s actual name set forth herein. The principal place of business and chief executive office of each Borrower is and will remain as stated in the first paragraph of this Agreement. Each Borrower’s organizational identification number are as follows: Hotel Fee Borrower - 4961258, Operating Lessee Borrower – 4961254 and Garage Fee Borrower – 4961085.
30.Trademarks, Etc. There exists no claim by any Person that contests or questions Borrower’s right to use all applicable patents, trademarks, copyrights, technology, know-how and processes necessary for the conduct of the business and the operation of the Mortgaged Property substantially in the manner as contemplated to be conducted and operated. There are no claims, and to the best of Borrowers’ knowledge, there is no infringement of the rights of any Person, arising from the use of such patents, servicemarks, trademarks, copyrights, technology, know-how and processes by any Borrower. No Borrower has knowledge of any infringement by any third party on any rights of any Borrower in any of its intellectual property. No name or logo used in connection with the Mortgaged Property or any part thereof or business therein is a registered servicemark, tradename or trademark of any Borrower.
31.Purpose of Borrower. Each Borrower has been, is, and at all times during the Term shall remain, a Special Purpose Bankruptcy Remote Entity whose sole purpose has been, is and shall be to acquire, own, hold, construct, operate, manage, develop, market, finance, lease, maintain or sell and otherwise deal with the Mortgaged Property. Each Borrower was formed for the purpose of investing the equity capital that was contributed to such Borrower by the member(s) of such Borrower in compliance with the provisions of Schedule II attached hereto. Each Borrower has been, is, and will be organized for the purpose of investing the equity capital that was contributed to such Borrower by the member of such Borrower, but each Borrower has not, is not and will not itself be engaged in raising equity capital.
32.Flood Zone. Neither the Mortgaged Property nor any portion thereof is located within an area that has been designated or identified as an area having special flood hazards by the Secretary of Housing and Urban Development or by such other official as shall from time to time be authorized by federal or state law to make such designation pursuant to the National Flood Insurance Act of 1968, as such act may from time to time be amended, or pursuant to any other national, state, county or city program of flood control, or, if so located, the flood insurance required pursuant to Section 5.11(a)(i)(A) hereof is in full force and effect with respect to the Property.
33.Taxes. Each Borrower has at all times been properly treated for U.S. federal income tax purposes as an entity disregarded as separate from its only owner as defined in Treasury Regulation Section 301.7701-3(b)(1)(ii). No person shall take any action inconsistent with such classification. Each Borrower has filed, or caused to be filed, all U.S. federal, state, local and non-U.S. tax returns, reports and other tax-related documents required to be filed by it and has paid all Taxes payable by it that have become due, other than those not yet delinquent. Each Borrower has established on its books such charges, accruals and reserves in respect of Taxes for all fiscal periods as are required by sound accounting principles consistently applied. Each Borrower believes that its tax returns (if any) properly reflect the income and taxes of such Borrower for the periods covered thereby. There is no proposed tax assessment against the Mortgaged Property (or any portion thereof) or to Borrowers’ knowledge any basis for such assessment which is material and has not been disclosed to Agent. The Mortgaged Property are separately assessed from all other adjacent land for purposes of real estate taxes, and for all
94
49289660

purposes may be dealt with as an independent parcel. The Property is not presently, and to Borrowers’ knowledge, has never been, benefitted by any tax abatement program.
34.Adverse Contracts. No Borrower is a party to any contract or agreement, or subject to any charter or other restriction, which materially and adversely affects its business, property, assets, operations, condition (financial or otherwise) taken as a whole, or its ability to perform its obligations under this Agreement or any of the other Loan Documents.
35.Adverse Claims. There are no adverse claims to the title of Borrowers in and to the whole or any portion of the Mortgaged Property or the other Collateral.
36.Creditworthiness. Both before and immediately after entering into each of the Loan Documents to which they are a party, (i) Borrowers and Guarantor are able to pay their respective debts and other obligations when due and (ii) Guarantor is able to meet the Guarantor Financial Covenants.
37.Illegal Activity. No portion of the Property has been or will be purchased with proceeds of any illegal activity and there are no illegal commercial activities or commercial activities relating to controlled substances at the Property (including, without limitation, any growing, distributing and/or dispensing of marijuana for commercial purposes, medical or otherwise), provided that the foregoing representation shall be qualified to Borrowers’ knowledge with respect to any Person other than Borrowers and Affiliates of Borrowers. The Loan is a business loan transaction in the stated amount solely for the purpose of carrying on the business of Borrowers and none of the proceeds of the Loan will be used for personal, family, household or agricultural purposes. There has not been and shall never be committed by any Borrower or any of its Affiliates (and Borrowers shall exercise commercially reasonable efforts to ensure that there shall never be committed by other Persons) any act or omission affording the federal government or any state or local government the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under this Agreement, the Note, the Mortgage, or the other Loan Documents. Each Borrower hereby covenants and agrees not to commit, permit or suffer to exist any act or omission affording such right of forfeiture.
38.Physical Condition. Except as set forth in the Property Condition Report, the Mortgaged Property, including, without limitation, all buildings, Improvements, parking facilities, sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, are in good condition, order and repair in all material respects, reasonable wear and tear excepted. There exists no structural or other material defects or damages in or to the Mortgaged Property, whether latent or otherwise, and no Borrower has received any written notice from any insurance or bonding company of any defects or inadequacies in the Mortgaged Property, or any part thereof, which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond.
39.No Reliance on Agent or Lenders. Each Borrower and Guarantor is a sophisticated owner, operator, developer, manager and investor in real estate, and its decision to enter into the Loan Documents is based upon its own independent expert evaluation of the terms, covenants, conditions and provisions of the Loan Documents and such other matters, materials and market conditions and criteria which Borrower and such parties deemed relevant. Neither any Borrower nor Guarantor have relied in entering into this Agreement, the Loan or the other Loan Documents upon any oral or written information, representation, warranty or covenant from Agent or any Lender, or any of their respective representatives, employees, Affiliates or agents, other than the representations and warranties, if any, of Agent and Lenders contained
95
49289660

herein. Each Borrower further acknowledges that no employee, agent or representative of Agent or any Lender has been authorized to make, and that neither any Borrower nor any Guarantor have relied upon, any statements, representations, warranties or covenants other than those specifically contained in this Agreement and the other Loan Documents. Without limiting the foregoing, each Borrower acknowledges that Agent and Lenders have made no representations or warranties as to the Loan or the Mortgaged Property (including the cash flow of the Mortgaged Property, the value, marketability, condition or future performance thereof, the existence, status, adequacy or sufficiency of the Leases, the tenancies or occupancies of the Mortgaged Property, or the sufficiency of the cash flow of the Mortgaged Property, to pay all amounts which may become due from time to time pursuant to the Loan).
40.Solvency/Fraudulent Conveyance. Borrowers (a) have entered into the transaction contemplated by this Agreement or any Loan Document without the actual intent to hinder, delay, or defraud any creditor and (b) has received reasonably equivalent value in exchange for its obligations under the Loan Documents. After giving effect to the Loan, the fair saleable value of Borrowers’ assets exceed and will, immediately following the making of the Loan, exceed Borrowers’ total liabilities, including, without limitation, subordinated, unliquidated, disputed and contingent liabilities. The fair saleable value of Borrowers’ assets are and will, immediately following the making of the Loan, be greater than such Borrowers’ probable respective liabilities. Borrowers’ assets do not and, immediately following the making of the Loan will not, constitute unreasonably small capital to carry out its respective businesses as conducted or as proposed to be conducted and Borrowers do not intend to, and does not believe that it will, incur Indebtedness and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such Indebtedness and liabilities as they mature (taking into account the timing and amounts of cash to be received by Borrowers and the amounts to be payable on or in respect of its obligations).
41.Organizational Chart. The organizational chart attached as Schedule I, relating to Borrowers and certain Affiliates and other parties, is true and correct on and as of the date hereof.
42.Leases. The rent roll attached hereto as Schedule VI is true, complete and correct in all material respects as of the date thereof and reflects the terms of any lease modifications, waivers or deferrals agreed to by any Borrower in all material respects, and as of the date hereof (or, in the future, as of the date the representations are re-made in the future) the Property is not subject to any Leases other than the Leases described in Schedule VI. One of the Borrowers is the owner and lessor of landlord’s interest in the Leases. No Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases. Except as set forth on the rent roll attached hereto as Schedule VI, the most recently delivered Quarterly Leasing Report or provided in any estoppel certificate in favor of Lender that was delivered in connection with the closing of the Loan, as of the date hereof: (i) the Leases are in full force and effect and there are no defaults thereunder by the applicable Borrower or, to Borrowers’ knowledge, the other party beyond any applicable notice or cure period, and, to Borrowers’ knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder, (ii) the copies of the Leases delivered to Agent are true and complete copies of the Leases in Borrowers’ possession, and there are no oral agreements with respect thereto, (iii) no Rent (excluding security deposits) under any Leases has been paid more than one (1) month in advance of its due date, (iv) all work to be performed by the applicable Borrower under each Lease has been performed in all material respects as required and has been accepted by the applicable Lessee, (v) any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by any Borrower to any Lessee has already been received by such Lessee, (vi) the Lessees under the Leases have accepted possession of and are in actual occupancy of all of their respective demised Property and have commenced the payment of full, unabated rent under the Leases, (vii)
96
49289660

Borrowers has delivered to Agent a true, correct and complete list of all security deposits made by Lessees at the Property which have not been applied (including accrued interest thereon), all of which are held by any Borrower in accordance with the terms of the applicable Lease and applicable Legal Requirements, (viii) no Lessee under any Lease (or any sublease) is an Affiliate of any Borrower or Guarantor, (ix) to Borrowers’ knowledge, the Lessees under the Leases are open for business and paying full, unabated rent and no Lessee has requested to discontinue its business at its premises or has 「gone dark」 (or has noticed in writing any Borrower of its intent to go dark) in all or a material portion of its leased premises), (x) there are no brokerage fees or commissions in connection with the leasing of space at the Property, and no such fees or commissions will become due and payable in the future in connection with the Leases, including by reason of any extension of such Lease or expansion of the space leased thereunder, (xi) intentionally left blank, (xii) to Borrowers’ knowledge, no Lessee has (A) asserted any defense against the payment of any rent or other amounts under its Lease or the performance of any other obligations under its Lease or (B) sought or given notice (whether written or oral) that it intends to seek any relief or other concessions with respect to the payment of any rent or other amounts under its Lease or the performance of any other obligations under its Lease, and (xiii) except as disclosed to Agent, no Borrower is currently in discussions or negotiations (directly or indirectly) with any Lessee with respect to, and no Lessee has requested in writing, any material amendment or modification of the Lease (including, without limitation, any reduction, deferral or waiver in the rent or the term thereof or in any other amounts due thereunder). No Lessee under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. There is no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein which is still in effect.
43.Hotel.
(a)The Existing Hotel Management Agreement, pursuant to which Hotel Manager operates the Hotel under a name and/or hotel system controlled by the Hotel Manager, is in full force and effect, and there are no monetary or other material defaults by any Borrower thereunder and, to the knowledge of Borrowers, there are no monetary or other material defaults thereunder by any other party thereto. Neither the execution and delivery of the Loan Documents nor Borrowers’ performance thereunder will adversely affect Borrowers’ rights under the Hotel Management Agreement. Other than the Hotel Management Agreement, the Garage Management Agreement, Permitted Encumbrances and any of the other Material Agreements, there are no other material agreements to which a Borrower is a party relating to the management of the Hotel and its operation.
(b)Hotel Manager is the employer of all employees at the Hotel. No Borrower has or employs any employees. Other than the Collective Bargaining Agreements, neither any Borrower nor Hotel Manager is a party or subject to any collective bargaining or other labor agreement pertaining to the Hotel Property. Other than the Unions, there is no union or any other organization or employee representative representing any employees at the Hotel Property. To Borrower’s knowledge, there are no pending or threatened unfair labor practice complaints or charges, labor arbitrations, grievances, disputes or controversies with any union or any other labor organization or employee representative or arising out of or under any Collective Bargaining Agreement that are reasonably likely to have a material adverse effect; and there are no pending or, to Borrowers’ knowledge, threatened strikes, lockouts, handbilling, picketing or work stoppages regarding the Hotel Property that are reasonably likely to have a material adverse effect. Borrowers shall promptly notify Agent upon the occurrence or threatened occurrence of any of the matters described in the preceding sentence or of any organizing activity or demand for collective bargaining of which Borrower has knowledge or following delivery or receipt of any notice or correspondence concerning any material breach of or default under any Collective Bargaining Agreement.
97
49289660

(c)Intentionally left blank.
(d)All Liquor Licenses required of either Borrower or Hotel Manager for the legal use, occupancy and operation of the Hotel Property as a hotel and restaurant have been obtained and are in full force and effect. All Liquor Licenses as of the Closing Date are held in the name of Sheraton Hotel Manager or a 「dba」 of Sheraton Hotel Manager.
Article IV
CASH MANAGEMENT
1.Collateral Accounts.
(a)Borrowers shall, and shall cause Parking Manager to, cause the Net Parking Revenue, and cause Garage Manager to cause all Garage Revenue (other than revenue allocable to parking in the Garage) and shall cause each of the credit card companies with which Garage Fee Borrower, Garage Manager or Parking Manager has entered into merchant’s or other credit card agreements (collectively, “Credit Card Agreements”) that all revenues paid by such credit card companies with respect to the Garage Property (less any processing fees which are owed such credit card company in accordance with the terms of its respective Credit Card Agreement), in accordance with such merchant’s agreements or otherwise, and all amounts received from Garage Fee Borrower, Garage Manager or Parking Manager to be transmitted directly into a trust account (the “Clearing Account”) established and maintained by Borrowers as more fully described in the Clearing Account Agreement.
(b)For so long as the Existing Hotel Management Agreement and/or 2025 Hotel Management Agreement are in effect, Borrowers shall, and shall cause Sheraton Hotel Manager to, cause all Operating Profit (as defined in the Existing Hotel Management Agreement and 2025 Hotel Management Agreement) allocable to Hotel Fee Borrower and/or Operating Lessee Borrower to be transmitted directly into the Clearing Account. If the Existing Hotel Management Agreement and/or 2025 Hotel Management Agreement is not in full force and effect, Borrowers shall enter into any amendments to the cash management provisions in this Article IV and the Cash Management Agreement requested by Agent to cause all Hotel Revenue to be deposited directly into the Clearing Account. Borrowers shall cooperate in good faith with Agent’s efforts to cause the funds in the Hotel Manager FF&E Reserve to be deposited into an account subject to the control of Agent, pursuant to an account agreement between the depository bank where such funds will be held, Hotel Manager, Operating Lessee Borrower, Hotel Fee Borrower and Agent, in form and substance reasonably acceptable to Agent.
(c)To the extent Borrowers receive notice from the Clearing Bank that it intends to terminate the Clearing Account Agreement, Borrowers shall establish a new Clearing Account at an Eligible Institution reasonably approved by Agent and enter into a new clearing account agreement that is substantially similar to then-existing Clearing Account Agreement (with such changes as are reasonably approved by Agent) on or prior to the date such then-existing Clearing Account Agreement is terminated. Without in any way limiting the foregoing, if Borrowers or Garage Manager receive any Revenue from the Property, then (i) such amounts shall be deemed to be collateral for the Obligations and shall be held in trust for the benefit, and as the property, of Agent (on behalf of Lenders), (ii) such amounts shall not be commingled with any other funds or property of Borrowers or Garage Manager and (iii) Borrowers and Garage Manager shall deposit such amounts in the Clearing Account within two (2) Business Days of receipt. Funds deposited into the Clearing Account shall be swept by the Clearing Bank on a daily basis into the Cash Management Account and applied and disbursed in accordance with this Agreement. The Clearing Account Agreement shall govern, among other things, the deposit of funds into and the withdrawal of funds from the Clearing Account, which Clearing Account shall be under the sole dominion and control of Agent, and the Clearing Account Agreement
98
49289660

shall contain the irrevocable instructions of Borrowers to Clearing Bank, and Clearing Bank’s agreement, to follow only the instructions of Agent with respect to the Clearing Account (which Agent agrees to give in accordance with the terms of this Article IV) and to disregard any and all orders for withdrawal from the Clearing Account made by, or at the direction of, Borrowers or any other Person (unless otherwise instructed by Agent, in accordance with this Agreement). Borrowers shall not open or cause or permit any other Person (including Garage Manager or Hotel Manager) to open or maintain any accounts with respect to the collection or deposit of Revenues other than the Clearing Account, the accounts established under the Existing Hotel Management Agreement and/or 2025 Hotel Management Agreement and/or the accounts established under the Parking Garage Lease.
(d)Borrowers hereby confirms that Borrowers have established, and from and after the Closing Date, Borrowers shall maintain with the Account Bank, an operating account (collectively, the “Operating Account”), which Operating Account shall be a segregated Eligible Account in the name of the applicable Borrowers. Any sums to be paid to Borrowers pursuant to Section 2.1.2 and/or Section 4.4(a)(vi) shall be deposited by Agent in the Operating Account and, so long as no Event of Default is then continuing, may be further disbursed, in accordance with the terms of this Agreement and the other Loan Documents, at the direction of Borrowers.
(e)Borrowers hereby confirms that, in connection with the execution of the Cash Management Agreement and pursuant to the terms of such Cash Management Agreement, Borrowers will establish, and from and after establishment thereof, Borrowers shall maintain with Cash Management Bank, a cash management account to serve as the repository of all sums transferred from the Clearing Account or otherwise required to be deposited therein in accordance with this Agreement (the “Cash Management Account”), which Cash Management Account shall be a segregated Eligible Account in the name of Borrower for the benefit of Agent, as secured party, and shall be named as follows: DBAG TSS Trust Liability Account (or such other name approved by Agent). The Cash Management Agreement shall govern, among other things, the deposit of funds into and the withdrawal of funds from the Cash Management Account, which Cash Management Account shall be under the sole dominion and control of Agent, and the Cash Management Agreement shall contain the irrevocable instructions of Borrowers to the Cash Management Bank, and Cash Management Bank’s agreement, to follow only the instructions of Agent with respect to the Cash Management Account (which Agent agrees to give in accordance with the terms of this Article IV) and to disregard any and all orders for withdrawal from the Cash Management Account made by, or at the direction of, Borrowers or any other Person. Borrowers further confirm that the following sub-accounts of the Cash Management Account (each, a “Sub-Account” and, collectively, the “Sub-Accounts”) have been established with the Cash Management Bank, which (i) may be ledger or book entry sub-accounts and need not be actual sub-accounts, (ii) shall each be linked to the Cash Management Account, (iii) shall each be under the sole dominion and control of Agent, and (iv) shall be allocated and disbursed, pursuant to the terms of this Agreement:
(1)Unless a Hotel Management Agreement is in effect pursuant to which the Hotel Manager is paying all Monthly Hotel Pass-Through Income Amount directly to the applicable third-party service provider or another applicable Person, a Sub-Account in respect of the Monthly Hotel Pass-Through Income Amount, provided that Borrower has timely delivered the Monthly Hotel Pass-Through Income Certificate and without duplication of any amounts paid by or on behalf of Borrower, Hotel Manager or any Affiliate of Borrower or Hotel Manager, to Borrower, in the amount of the Monthly Hotel Pass-Through Income Amount;
(2)A Sub-Account in respect of real property tax and insurance impounds relating to the Mortgaged Property (the “Tax and Insurance Reserve Sub-Account”). Sums shall be deposited in the Tax and Insurance Reserve Sub-Account
99
49289660

in accordance with Section 4.4 and 4.6 and used to fund the payment of Property Taxes and Insurance Premiums (and otherwise applied) as provided in Section 4.6, other than Insurance Premiums in respect of coverages for the Hotel Property obtained by Hotel Manager and Property Taxes paid by Hotel Manager in respect of the Hotel Property.
(3)A Sub-Account in respect of principal and interest payments on the Loan (the “Debt Service Reserve Sub-Account”). Sums shall be deposited in the Debt Service Reserve Sub-Account in accordance with Section 4.4 and used to fund the payment of Debt Service.
(4)A Sub-Account for the reserve of funds during a Cash Sweep Period (the “Net Cash Flow Reserve Sub-Account”). Sums shall be deposited in the Net Cash Flow Reserve Sub-Account in accordance with Section 4.4 and applied as provided in Section 4.5.
(5)A Sub-Account in respect of Approved Capital/FF&E Expenditures (the “FF&E Reserve Sub-Account”). Sums shall be deposited in the FF&E Reserve Sub-Account in accordance with Section 4.9(a) and applied as provided in Section 4.9(b).
(6)A Sub-Account in respect of which Key Money shall be deposited (the “Key Money Reserve Sub-Account”). Sums shall be deposited in the Key Money Reserve Sub-Account in accordance with Section 4.8(a) and applied as provided in Section 4.8(b).
(7)A Sub-Account in respect of a seasonal working capital reserve fund (the “Seasonality Reserve Sub-Account”). Sums shall be deposited in the Seasonality Reserve Sub-Account in accordance with Section 4.13(a) and applied as provided in Section 4.13(b).
(f)All sums deposited in the Clearing Account shall be swept on a daily basis and deposited in the Cash Management Account. If an Event of Default is continuing, Agent may, in its sole and absolute discretion, and notwithstanding anything to the contrary contained in Section 4.1(a), require (x) Garage Fee Borrower to deposit all Garage Revenue (other than Garage Revenue collected by Parking Manager), and cause the Parking Manager to deposit any and all Net Parking Revenue directly into the Cash Management Account (and not the Clearing Account) within two (2) Business Day after receipt, and to instruct all Lessees and other Persons obligated to pay any Garage Revenue to or for the account or benefit of Garage Fee Borrower to pay such amounts, by wire transfer if possible, directly into the Cash Management Account (and not the Clearing Account) and (y) Hotel Fee Borrower and Operating Lessee Borrower to deposit all Hotel Revenue received by it, and cause Hotel Manager to deposit the “Owner’s Profit” (as such term is defined in the Hotel Management Agreement) directly into the Cash Management Account (and not the Clearing Account) within two (2) Business Day after receipt.
(g)The Clearing Account, the Cash Management Account and the Sub-Accounts collectively constitute the “Collateral Accounts”. The Collateral Accounts and the funds deposited therein and any interest accruing thereon shall serve as additional security for the Loan.
(h)Interest accruing on amounts held in the Collateral Accounts under this Agreement shall be periodically added to the principal amount of such account and shall be held, disbursed and applied in accordance with the provisions of this Agreement. Borrowers shall be the beneficial owner of the Collateral Accounts for federal income tax purposes (but not
100
49289660

otherwise) and shall report all income on all amounts held in the Collateral Accounts under this Agreement.
(i)Any funds remaining in the Collateral Accounts after all Obligations have been paid in full shall be returned to Borrowers. In the event the Cash Management Agreement provides that the Cash Management Bank shall only return any funds in the Collateral Accounts to Borrower following receipt of a notice from Agent, then, upon payment in full of all Obligations and at Borrower’s request, Agent shall promptly send written notice to Cash Management Bank with instruction to release all such funds to Borrower.
2.Pledge of Account Collateral.
(a)To secure the full and punctual payment and performance of the Obligations, each Borrower hereby collaterally assigns, grants a security interest in and pledges to Agent for the benefit of the Lenders, a first priority continuing security interest in and to the following, whether now owned or existing or hereafter acquired or arising and regardless of where located (all of the same, collectively, the “Account Collateral”):
(1)the Collateral Accounts and all cash, checks, drafts, certificates, instruments and other property, including, without limitation, all deposits and/or wire transfers from time to time deposited or held in, credited to or made to the Collateral Accounts;
(2)all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise payable in respect of, or in exchange for, any or all of the foregoing; and
(3)to the extent not covered by clauses (1) or (2) above, all 「proceeds」 (as defined under the UCC) of any or all of the foregoing.
(b)In addition to the rights and remedies herein set forth, Agent shall have all of the rights and remedies with respect to the Account Collateral available to a secured party at law or in equity, including, without limitation, the rights of a secured party under the UCC, as if such rights and remedies were fully set forth herein.
(c)This Agreement shall constitute a security agreement for purposes of the Uniform Commercial Code and other applicable law. In order to perfect the security interest granted hereunder with respect to the Account Collateral, Borrowers shall execute and deliver the Account Agreements to Agent on or before the Closing Date.
3.Reserved.
4.Disbursements from Cash Management Account.
(a)Provided no Event of Default has occurred and is continuing, on each Payment Date, Agent shall authorize the Cash Management Bank to transfer amounts from the Cash Management Account, to the extent available therein, as follows, in the following order of priority:
(i)to the FF&E Reserve Sub-Account, the amounts then required to be deposited therein pursuant to Section 4.9, to be used, held and applied as provided in such Section;
101
49289660

(ii)provided that Borrower has timely delivered the Monthly Hotel Pass-Through Income Certificate and without duplication of any amounts paid by or on behalf of Borrower, Hotel Manager or any Affiliate of Borrower or Hotel Manager, to Borrower, in the amount of the Monthly Hotel Pass-Through Income Amount;
(iii)to the Tax and Insurance Reserve Sub-Account, the amounts then required to be deposited therein pursuant to Section 4.6, to be used, held and applied as provided in such Section;
(iv)to the Operating Account, as requested by Borrowers, an amount equal to the operating expenses (which, for the sake of clarity, shall exclude any tenant improvement and leasing costs) to be paid by Borrowers with respect to the Garage Property during the period beginning with such Payment Date and ending on the date immediately preceding the next Payment Date, to the extent consistent with the Approved Annual Budget (as may be adjusted pursuant to Section 5.1(e)), to be used by Garage Fee Borrower to pay such operating expenses and for no other purpose;
(v)to the Operating Account, as requested by Borrowers, (i) the amount required (if any) to fund any then-required Emergency Repair, to be used by Garage Fee Borrower to pay for such Emergency Repair, and for no other purpose and (ii) an amount equal to any operating expenses (which, for the sake of clarity, shall exclude any tenant improvement and leasing costs) and Capital Expenditures to be paid by Garage Fee Borrower during the period beginning with such Payment Date and ending on the date immediately preceding the next Payment Date that are not consistent with the Approved Annual Budget (as may be adjusted pursuant to Section 5.1(e)), but that are approved by Agent, such approval not to be unreasonably withheld, conditioned or delayed, to be used by Garage Fee Borrower to pay such operating expenses and for no other purpose;
(vi)to the Debt Service Reserve Sub-Account, for the benefit of the Lenders, the amount of all scheduled or delinquent Debt Service on the Loan and all other amounts due and payable to agent or any Lender under the Loan Documents, for distribution by Agent to the Lenders as otherwise provided in this Agreement (including, without limitation, the Servicing Fee);
(vii)to the Seasonality Reserve Sub-Account, with respect to each Fiscal Year, until funds have first accumulated in an amount equal to the applicable Annual Seasonality Cap;
(viii)during a Cash Sweep Period, any remaining amounts to the Net Cash Flow Reserve Sub-Account, to be used, held and applied as provided in Section 4.5; and
(ix)during any period that the Cash Sweep Period is not in effect, any remaining amounts to the Operating Account.
(b)During any period that an Event of Default has occurred and is continuing, all sums deposited in any Collateral Accounts may be held, disbursed, and applied in respect of any Obligations, operating expenses, Capital Expenditures, or otherwise, in such order and priority as Agent shall determine in its sole and absolute discretion.
(c)If on any Payment Date, the amount in the Cash Management Account with respect to the payments required in Sections 4.4(a)(i) through (a)(vi) above shall be less than the amount necessary to make all the payments required in Sections 4.4(a)(i) through (a)(vi) above, Borrower shall deposit into the Cash Management Account on such Payment Date the
102
49289660

amount of such deficiency. If Borrowers shall fail to make such deposit, the same shall constitute an Event of Default subject to and in accordance with Section 7.1 and, in addition to all other rights and remedies provided for under the Loan Documents, Agent may disburse and apply the amounts in the Cash Management Account in respect of the Obligations in such sequence and priority as Agent shall elect in its sole discretion.
5.Net Cash Flow Reserve Sub-Account.
(a)During a Cash Sweep Period, provided that no Event of Default is continuing, all sums deposited in the Net Cash Flow Reserve Sub-Account shall be held as additional collateral for the Loan until applied in accordance with subsections (b) or (c) below, as applicable.
(b)During the continuance of an Event of Default, Agent may hold, apply, and disburse any such funds as provided in Section 4.4(b).
(c)Provided that no monetary Default or material non-monetary Default (of which notice has been given by Agent) is then continuing, upon a termination of a Cash Sweep Period, all sums then on deposit in the Net Cash Flow Reserve Sub-Account (other than amounts necessary to achieve the Debt Yield required to cause such Cash Sweep Period to terminate, which amounts shall be remitted in accordance with this sentence as they are no longer so necessary) shall be remitted to the Operating Account. In addition, at any time during a Cash Sweep Period, so long as no Event of Default exists, Borrowers may request in writing that Lender apply amounts then on deposit in the Net Cash Flow Reserve Sub-Account to either (x) the repayment of the Outstanding Principal Balance, which repayment shall be made in accordance with the terms and conditions set forth in Section 2.4 hereof; provided that Borrowers shall only be required to provide Agent with five (5) Business Days prior written notice of such repayment, such repayment shall be on a Payment Date and the condition in Section 2.4(b)(1) does not need to be satisfied), or (y) to any Emergency Repair, Capital Expenditures, Approved Renovation/ PIP Expenses, FF&E Expenditures or expenses or operating expenses to the extent consistent with the Approved Budget. Such disbursement shall not preclude the subsequent commencement of a Cash Sweep Period and the deposit of amounts into Sub-Accounts (including the Net Cash Flow Reserve Sub-Account) as set forth in Section 4.4(a).
6.Tax and Insurance Reserve Sub-Account.
Borrowers shall deposit with Agent into the Tax and Insurance Reserve Sub-Account (x) on the Closing Date, an amount equal to $123,920.23 and (y) on each Payment Date thereafter an amount equal to the sum of:
(i)One-twelfth (1/12) of the Property Taxes (other than Property Taxes paid by Hotel Manager with respect to the Hotel Property) that will be payable during the next ensuing twelve (12) months as reasonably estimated by Agent, plus
(ii)one-twelfth (1/12) of the Insurance Premiums (other than Insurance Premiums in respect of coverages obtained by Hotel Manager with respect to the Hotel Property) that will be payable during the next ensuing twelve (12) months as reasonably estimated by Agent;
in order to accumulate sufficient funds to pay all such Property Taxes and Insurance Premiums at least thirty (30) days prior to their respective due dates.
103
49289660

If at any time the amount in the Tax and Insurance Reserve Sub-Account will not be sufficient to accumulate (upon payment of subsequent monthly amounts in accordance with the provisions hereof) the full amount of all installments of such Property Taxes and Insurance Premiums at least thirty (30) days prior to the date on which such amounts come due, then Agent shall notify Borrower at least ten (10) Business Days prior to the respective due dates for Property Taxes and the Insurance Premiums, as applicable, of such deficiency and the monthly payments to the Tax and Insurance Reserve Sub-Account shall be increased by the amount that Agent reasonably estimates is sufficient to make up such deficiency; provided, that if Borrowers receive notice of any deficiency after the date that is ten (10) days prior to the date that such Property Taxes or Insurance Premiums are due, Borrowers will deposit with or on behalf of Agent such amount within two (2) Business Days after its receipt of such notice.
(a)Borrowers shall provide Agent with copies of all tax and insurance bills relating to the Mortgaged Property promptly after Borrowers’ receipt thereof. So long as no Event of Default exists, Agent shall direct Servicer to apply funds in the Tax and Insurance Reserve Sub-Account to payments of Property Taxes and Insurance Premiums, as applicable, prior to the date such payment shall be delinquent or incur any additional charge, penalty or interest. In connection with the making of any payment from the Tax and Insurance Reserve Sub-Account, Agent may cause such payment to be made according to any bill, statement or estimate procured from the appropriate public office, without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax Lien or title or claim thereof unless given written advance notice by Borrowers of such inaccuracy, invalidity or other contest. Any funds remaining in the Tax and Insurance Reserve Sub-Account after the Obligations have been paid in full shall be returned to Borrowers.
(b)Notwithstanding anything to the contrary contained in Section 4.6(a), in the event that an Acceptable Blanket Policy is in effect with respect to the Insurance Policies required pursuant to Section 5.11, provided that (x) no Event of Default has occurred and is continuing, and (y) all Insurance Premiums payable in connection with such Acceptable Blanket Policy have been prepaid for a one (1) year period in advance of the time of commencement of the applicable term, deposits into the Tax and Insurance Reserve Sub-Account to pay for Insurance Premiums pursuant to Section 4.6(a) above shall be suspended with respect to Insurance Premiums related to such Acceptable Blanket Policy. As of the Closing Date, an Acceptable Blanket Policy is in effect with respect to the Insurance Policies required as of the Closing Date pursuant to Section 5.11.
7.Intentionally Omitted.
8.Key Money Reserve Sub-Account.
(a)Deposit of Key Money Funds. Borrowers shall direct Sheraton Hotel Manager to make payment of all or any portion of the Key Money directly to Cash Management Account, which amounts shall be transferred into the Key Money Reserve Sub-Account. Notwithstanding the foregoing, if Borrowers receive any Key Money from Sheraton Hotel Manager, Borrowers shall promptly (and within not more than two (2) Business Days) deliver all such Key Money to Agent for deposit into the Key Money Reserve Sub-Account.
(b)Release of Key Money Funds. Provided no Event of Default or Renovation/PIP Costs Shortfall shall exist, amounts on deposit in the Key Money Reserve Sub-Account from time to time shall be disbursed to Borrowers to pay or reimburse Borrowers for Approved Renovation/ PIP Expenses pursuant to and in accordance with the same terms and
104
49289660

conditions, and in the same manner as, and subject to the same conditions, for the funding of Advances hereunder, as if incorporated herein, mutatis mutandis (although Borrowers will not be required to obtain the applicable date-down endorsement corresponding with respect to each disbursement). Agent confirms that amounts received by Agent or deposited into the Key Money Reserve Sub-Account shall be considered Future Equity Contributions. Any amount in the Key Money Reserve Sub-Account after (i) Final Completion of both the Phase Zero Renovation Project and the PIP Project, and (ii) satisfaction of the obligations set forth in Section 5.41(f) hereof, less, to the extent a monetary Default then exists, any such amount, shall be released to the Operating Account.
9.FF&E Reserve Sub-Account.
(a)Deposits of FF&E Funds. Borrower shall deposit with or on behalf of Agent on each Payment Date, the lesser of (x) the applicable monthly amount recommended or required under the Hotel Management Agreement, as adjusted from time to time pursuant to the terms of the Hotel Management Agreement, and (y) the quotient of 4.00% of Hotel Revenue (excluding any Hotel Pass-Through Income) divided by twelve (12), for annual FF&E Expenditures and Capital Expenditures, which amounts shall be transferred into the FF&E Reserve Sub-Account. Notwithstanding the foregoing, Borrower shall have no obligation to make the deposits required under this Section 4.9(a) to the extent Hotel Manager is collecting and reserving funds for FF&E and Capital Expenditures in a segregated account for such purpose in accordance with the terms and conditions of the Hotel Management Agreement (a “Hotel Manager FF&E Reserve”).
(b)Release of FF&E Funds. Provided no Default or Event of Default is continuing, Agent shall direct Servicer to disburse FF&E Funds to Borrower out of the FF&E Account, within ten (10) days after the delivery by Borrower to Agent of a request therefor (but not more often than once per month), in increments of at least $10,000 (or a lesser amount if the total amount in the FF&E Account is less than $10,000 in which case only one disbursement of the amount remaining in the account shall be made) provided that: (i) such disbursement is for an Approved Capital/ FF&E Expenditures; (ii) the request for disbursement is accompanied by (A) an Officer’s Certificate from Borrower (1) stating that the items to be funded by the requested disbursement are Approved Capital/FF&E Expenditures, and a description thereof, (2) stating that all Approved Capital/FF&E Expenditures to be funded by the requested disbursement have been completed (or completed to the extent of the requested disbursement) in a good and workmanlike manner and in accordance with all applicable Legal Requirements, (3) identifying each Person that supplied materials or labor in connection with the Approved Capital/FF&E Expenditures to be funded by the requested disbursement, (4) stating that each such Person has been paid in full not more than sixty (60) days prior to the disbursement request or will be paid in full upon such disbursement, or if such payment is a progress payment, that such payment represents full payment to such Person, less any applicable retention amount, for work completed through the date of the relevant invoice from such Person, (5) stating that the Approved Capital/FF&E Expenditures (or the relevant portions thereof) to be funded from the disbursement in question have not been the subject of a previous disbursement from any Account or included in any previous disbursement of Operating Expenses or Capital Expenditures or credited towards any equity contribution obligation of Borrower, (6) stating that all previous disbursements of FF&E Funds have been used to pay the previously identified Approved Capital/FF&E Expenditures, and (7) stating that all outstanding trade payables (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) have been paid in full other than any applicable retention amount, (B) a copy of any license, permit or other approval required by any Governmental Authority in connection with the Approved Capital/FF&E Expenditures and not previously delivered to Agent, (C) copies of appropriate lien waivers, conditional lien waivers, or other evidence of payment reasonably satisfactory to Agent, (D) at Agent’s option, a title search for the Property indicating that the Property is free from all Liens,
105
49289660

claims and other encumbrances not previously approved by Agent, and (E) such other evidence as Agent shall reasonably request to demonstrate that the Approved Capital/FF&E Expenditures to be funded by the requested disbursement have been completed and are paid for or will be paid upon such disbursement to Borrower (or the portion thereof as to which such request for disbursement has been submitted has been completed and is paid for (other than any retention amount which is not a part of such disbursement request) or will be paid upon such disbursement to Borrower) and (iii) if such disbursement request is for $20,000 or more, Agent shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance of the work associated with such Approved Capital/FF&E Expenditure.
10.Intentionally Left Blank.
11.Renovation/PIP Costs Rebalancing Reserve Sub-Account. Borrowers shall deposit into the Renovation/PIP Costs Rebalancing Reserve Sub-Account such amounts required to be deposited by Borrowers pursuant to Section 2.20.8 hereof. Provided no Event of Default or Renovation/PIP Costs Shortfall shall exist, amounts on deposit in the Renovation/PIP Costs Rebalancing Reserve Sub-Account from time to time shall be disbursed to Borrowers to pay for Approved Renovation/PIP Expenses pursuant to and in accordance with the same terms and conditions, and in the same manner as, and subject to the same conditions, for the funding of Advances hereunder, as if incorporated herein, mutatis mutandis (although Borrowers will not be required to obtain the applicable date-down endorsement corresponding with respect to each disbursement). So long as any amounts are on deposit in the Renovation/PIP Costs Rebalancing Reserve Sub-Account from time to time, Lenders shall not be obligated to fund any further Advances until all such amounts are utilized in accordance with the immediately preceding sentence. Any amount remaining in the Renovation/PIP Costs Rebalancing Reserve Sub-Account after Final Completion of the Phase Zero Renovation Project and PIP Project shall be released to the Operating Account.
12.Seasonality Reserve.
(a)    Deposits. Borrower shall pay to Lender, $0 on the date hereof. On each Payment Date during a Fiscal Year during the term of the Loan, funds shall be deposited into the Seasonality Reserve Sub-Account in accordance with Section 4.4(a) hereof until funds on deposit in the Seasonality Reserve Sub-Account are first equal to the applicable Annual Seasonality Cap for such Fiscal Year.
(b)    Release of Seasonality Reserve. On each Payment Date occurring in August, September, October and/or January, Lender shall, upon request by Borrowers, release funds on deposit in the Seasonality Reserve Sub-Account into the Cash Management Account or to Hotel Manager, as applicable, to fund payments of operating expenses at the Hotel Property.
13.Bankruptcy. Borrowers and Lenders hereby acknowledge and agree that upon the filing of a bankruptcy petition by or against any Borrower under the Bankruptcy Code, the Account Collateral and the Revenue (whether then already in the Collateral Accounts, or then due or becoming due thereafter) shall be deemed not to be property of such Borrower’s bankruptcy estate within the meaning of Section 541 of the Bankruptcy Code. In the event, however, that a court of competent jurisdiction determines that, notwithstanding the foregoing characterization of the Account Collateral and the Revenue by any Borrower and Lenders, the Account Collateral and/or the Revenue do constitute property of such Borrower’s bankruptcy estate, then Borrowers and Lenders hereby further acknowledge and agree that all such Revenue, whether due and payable before or after the filing of the petition, are and shall be cash collateral of Agent for the benefit of Lenders. Borrowers acknowledge that neither Lenders nor Agent
106
49289660

consent to any Borrower’s use of such cash collateral following the filing of a bankruptcy petition by or against any Borrower.
14.Borrower’s Account Representations, Warranties and Covenants. Each Borrower represents, warrants and covenants that:
(a)Each Borrower shall cause Hotel Manager to deposit all amounts payable to Hotel Fee Borrower and/or Operating Lessee Borrower pursuant to the Hotel Management Agreement, and to mail all checks and wire all funds with respect to any payments due to Hotel Fee Borrower and/or Operating Lessee Borrower, directly to the Clearing Account (or to the post office box associated with the Clearing Account, as described in the Clearing Account Agreement) and in any event no later than two (2) Business Days after receipt thereof by Hotel Manager;
(b)Borrowers shall, and shall cause Parking Manager to, cause the Net Parking Revenue, and cause Garage Manager to cause all Garage Revenue (other than revenue allocable to parking in the Garage) to be deposited directly to the Clearing Account (or to the post office box associated with the Clearing Account, as described in the Clearing Account Agreement) and in any event no later than two (2) Business Days after receipt thereof by Parking Manager and Garage Manager, respectively;
(c)All Revenue, Cash and Cash Equivalents or other items of Rents (including, without limitation, payments to any Borrower by any entity or Affiliate that Borrower owns an Equity Interest in) not otherwise collected as described in clauses (a) or (b) above, shall be paid by or caused to be paid by such Borrower within three (3) Business Days after receipt thereof by such Borrower or its Affiliates directly into the Clearing Account;
(d)Until the items to be deposited in clauses (a) or (b) above are so deposited, any such amounts held by such Person(s) shall be deemed to be Account Collateral and shall be held in trust by it for the benefit, and as the property, of Agent and the Lenders and shall not be commingled with any other funds or property of such Person;
(e)There are no accounts other than the Collateral Accounts maintained by Borrowers with respect to Property or the collection of Revenue; and
(f)So long as the Loan shall be outstanding, no Borrower shall not open any other operating accounts with respect to the Mortgaged Property or the collection of Revenue, except for the Collateral Accounts, accounts opened by Hotel Manager pursuant to the Hotel Management Agreement and the Operating Account.
15.Account Collateral and Remedies.
(a)Upon the occurrence and during the continuance of an Event of Default, without additional notice from Agent to Borrowers, Agent may, in addition to and not in limitation of Agent’s other rights, make any and all withdrawals from, and transfers between and among, the Collateral Accounts as Agent shall determine in its sole and absolute discretion to pay any Obligations.
(b)Upon the occurrence and during the continuance of an Event of Default, each Borrower hereby irrevocably constitutes and appoints Agent as such Borrower’s true and lawful attorney-in-fact, with full power of substitution, to execute, acknowledge and deliver any instruments and to exercise and enforce every right, power, remedy, option and privilege of such Borrower with respect to the Account Collateral, and do in the name, place and stead of such Borrower, all such acts, things and deeds for and on behalf of and in the name of such Borrower,
107
49289660

which such Borrower could or might do or which Agent may deem necessary or desirable to more fully vest in Agent the rights and remedies provided for herein and to accomplish the purposes of this Agreement. The foregoing powers of attorney are irrevocable and coupled with an interest.
(c)Each Borrower hereby expressly waives, to the fullest extent permitted by law, presentment, demand, protest or any notice of any kind (except as expressly required under the Loan Documents) in connection with this Agreement or the Account Collateral. Each Borrower acknowledges and agrees that ten (10) Business Days’ prior written notice of the time and place of any public sale of the Account Collateral or any other intended disposition thereof shall be reasonable and sufficient notice to Borrowers within the meaning of the UCC.
16.Transfers and Other Liens. Each Borrower agrees that it will not (i) sell or otherwise dispose of any of the Account Collateral except as may be expressly permitted under the Loan Documents, or (ii) create or permit to exist any Lien upon or with respect to all or any of the Account Collateral, except for the Lien granted to Agent under this Agreement and any customary liens of Clearing Bank or Cash Management Bank thereupon to the extent expressly permitted under the Clearing Account Agreement or the Cash Management Agreement.
17.No Liability. Agent shall be responsible for the performance only of such duties with respect to the Account Collateral as are specifically set forth in this Section 4.18 or elsewhere in the Loan Documents, and no other duty shall be implied from any provision hereof. Agent shall not be under any obligation or duty to perform any act with respect to the Account Collateral which would cause it to incur any expense or liability or to institute or defend any suit in respect hereof, or to advance any of its own monies. Borrowers shall indemnify and hold Agent, its employees and officers harmless from and against any loss, cost or damage (including, without limitation, reasonable attorneys’ fees and disbursements, but excluding consequential, special, punitive or exemplary damages, except to the extent asserted against Agent or any Lender by any third party or paid by Agent or any Lender by any third party) incurred by Agent in connection with the transactions contemplated hereby with respect to the Account Collateral except as such costs as are determined in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of Agent, its employees, officers or agents. Agent shall be protected in acting upon any notice, resolution, request, consent, order, certificate, report, opinion, bond or other paper, document or signature believed by it in good faith to be genuine, and, in so acting, it may be assumed that any person purporting to give any of the foregoing in connection with the provisions hereof has been duly authorized to do so. Agent may consult with counsel, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by it hereunder and in good faith in accordance therewith.
18.Interest. Interest accruing on amounts held in the Collateral Accounts under this Agreement shall be periodically added to the principal amount of such account and shall be held, disbursed and applied in accordance with the provisions of this Agreement. Borrowers shall be the beneficial owner of the Collateral Accounts for federal income tax purposes (but not otherwise) and shall report all income on all amounts held in the Collateral Accounts under this Agreement.
19.Reinstatement. Upon the cessation of a Cash Sweep Period, and if no Default, Event of Default or other Cash Sweep Period shall have occurred and be continuing, Agent shall (A) confirm in writing to Cash Management Bank and Borrowers that such Cash Sweep Period is no longer in effect and (B) to subject to Section 4.5(c), cause Cash Management Bank to transfer any funds then held in the Net Cash Flow Reserve Sub-Account to the Operating Account.
108
49289660

Article V
GENERAL AND OPERATIONAL COVENANTS
1.Financial Statements, Reports and Documents of Borrower. Each Borrower shall deliver to Agent and each Lender each of the following:
(a)Annual Financial Statements. As soon as practicable, but in any event within one hundred and thirty (130) days after the close of each Fiscal Year of such Borrower, unaudited financial statements of such Borrower for such period, which shall (v) include a balance sheet, statement of operations (income and expenses), statement of cash flow, contingent liability schedule, statement of changes in members’ or partners’ capital, as applicable, and any other financial information with respect to such Borrower as shall be reasonably required by Agent, (w) be prepared in accordance with GAAP, and/or USALI and reconciled in accordance with GAAP, as applicable (or another accounting method (consistently applied) reasonably acceptable to Agent) (x) be in a form reasonably acceptable to Agent and (y) be certified by the chief executive, operating or financial officer of such Borrower as being true, correct and complete. Notwithstanding the foregoing, each Borrower agrees to provide audited financial statements of such Borrower (in the timeframe set forth in this clause (a)) if requested by Agent or Lender in connection with a Secondary Market Transaction.
(b)Quarterly Financial Statements. As soon as practicable, but in any event within sixty (60) days after the close of each Calendar Quarter of such Borrower, unaudited financial statements of such Borrower for such period, which shall (w) include a balance sheet, statement of operations (income and expenses), statement of cash flow, contingent liability schedule, statement of changes in members’ or partners’ capital, as applicable, and any other financial information with respect to such Borrower as shall be reasonably required by Agent, (x) be prepared in accordance with GAAP, and/or USALI and reconciled in accordance with GAAP, as applicable, (y) be in a form reasonably acceptable to Agent and (z) be certified by an officer of a member of such Borrower as being true, correct and complete in all material respects.
(c)Leasing and Occupancy Reports.
(i)As soon as practicable, but in any event no later than thirty (30) days after the end of each Calendar Quarter: (i) a delinquency report setting forth any arrearages under the Leases, each of which shall be certified as being true, correct and complete in all material respects by an officer of a member of such Borrower, (ii) a report setting forth the identity of each Lessee for which such Borrower has accepted rent more than one (1) month in advance and the amount of such rent accepted by such Borrower, (iii) a status report regarding the termination of Leases, (iv) a report setting forth the Tenants that have 「gone dark」 or have otherwise vacated all or a material portion of their space Leases, (v) an opening dates and co-tenancy schedule, (vi) a schedule of Tenants that have taken occupancy in their applicable space during the last Calendar Quarter (the schedules and reports described in clauses (i) through (vi) herein being referred to herein as the “Quarterly Leasing Report”) and (vii) a rent roll or updated rent roll, as the case may be, reasonably satisfactory to Agent and a summary of all leasing activity then taking place including the status of all Lease negotiations.
(ii)As soon as practicable, but in any event no later than thirty (30) days after the end of each Calendar Quarter (but only to the extent received from the Hotel Manager in the case of clause (i)): (i) an occupancy report, including an average daily rate and RevPAR, (ii) the most current Smith Travel Research Reports then available to Borrower reflecting market penetration and relevant hotel properties competing with the Hotel Property, (iii) any franchise and/or management inspection reports received by Borrower, Guarantor, Hotel Manager or any of their respective
109
49289660

Affiliates during such month, (iv) any notice from Hotel Manager that the Hotel (1) has received low quality or customer satisfaction ratings, surveys or reports, (2) is not in compliance with Hotel Manager’s brand standards or (3) has failed any franchise and/or management inspection report, or any similar notice in each case received by Borrower, Guarantor, Hotel Manager or any of their respective Affiliates during such quarter.
(d)Compliance Certificate. As soon as practicable, but in any event no later than sixty (60) days after the end of each Calendar Quarter, a certificate executed by the an officer of such Borrower stating that a review of the activities of such Borrower and the Mortgaged Property during such Calendar Quarter has been made by such individual and to the best knowledge and belief of such individual after reasonable and due investigation, (i) there exists no monetary Default or Event of Default as of the date of such certificate or, if any such event shall have occurred, specifying the nature and status thereof, (ii) to such Person’s knowledge, no default, failure of performance of a term, provision or covenant or terminating event has occurred under any Management Agreement, Hotel Management Agreement or any Lease, if in effect, that is reasonably likely to have a Material Adverse Effect and such Borrower has not received any notice that any party to any such document has challenged or denied the validity or enforceability thereof given any notice of default, termination or intent to terminate thereunder, or specifying the nature and status thereof and (iii) there is no litigation, mediation or arbitration pending with respect to such Borrower, the Mortgaged Property or any of the Collateral that is reasonably likely to have a Material Adverse Effect or, if any such litigation, mediation, or arbitration is pending, specifying the nature and status thereof.
(e)Notices by Governmental Authorities. Promptly upon receipt of same, true and complete copies of any official notice, claim or complaint by any Governmental Authority pertaining to the Mortgaged Property or any portion thereof or such Borrower’s rights under any Permitted Encumbrance which is reasonably likely to have a Material Adverse Effect, including any notice from a public authority concerning any tax or special assessment, or any notice of any alleged violation of any zoning ordinance, restrictive covenant, fire ordinance, building code provision, or other Legal Requirement affecting any portion of the Mortgaged Property and any notice of any Taking or other eminent domain action or proceeding affecting or threatened against any portion of the Mortgaged Property.
(f)Annual Budgets; Business Plans.
(i)As soon as available and in any event within thirty (30) days prior to the end of each Fiscal Year, a copy of a proposed Annual Budget for the upcoming Fiscal Year, which, so long as no Cash Sweep Period is in effect, shall be for informational purposes only, and if a Cash Sweep Period is then in effect, such Annual Budget shall require Agent’s prior written approval, which approval shall not be unreasonably withheld or delayed (provided that with respect to the Hotel Property, so long as a Hotel Management Agreement is in effect, Agent shall have an approval right with respect to the Annual Budget only to the extent Operating Lessee Borrower and/or Hotel Fee Borrower have the right to approve any such budget) (such Annual Budget, as approved by Agent or deemed approved pursuant to this clause (f) (if approval is required), as the same may be amended in accordance with the provisions hereof, the “Approved Annual Budget”). Upon receipt of Agent’s approval of an Annual Budget (or upon an Annual Budget being deemed approved or otherwise created), each Borrower shall deliver to Agent a copy of the Approved Annual Budget, which copy shall be certified by Borrower as the Approved Annual Budget for the applicable Fiscal Year. Agent acknowledges and agrees that on or prior to the Closing Date, each Borrower submitted to Agent the Annual Budget for the balance of 2024 and the Annual Budget for 2025 attached hereto as Schedule IV, which Agent has approved as an initial 「Approved Annual Budget」. In addition, notwithstanding anything to the contrary in this Section
110
49289660

5.1(f), upon entry into a Replacement Hotel Management Agreement, Hotel Fee Borrower shall deliver to Agent an updated Annual Budget for the remainder of the then applicable year, which such Annual Budget shall require Agent’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed (and for purposes of emphasis, such approval shall be required whether a Cash Sweep Period is in effect or not).
(ii)At any time Agent’s prior approval is required for an Annual Budget in accordance herewith, until such time that Agent approves a proposed Annual Budget (or a proposed Annual Budget is deemed approved), the most recently Approved Annual Budget which has actually been approved or deemed approved by Agent shall apply for the next Fiscal Year, as the same may be Modified by Borrower in accordance with this Section 5.1(f). Upon the occurrence and during the continuance of a Cash Sweep Period, upon Lender’s request, each Borrower shall deliver, on a quarterly basis (or cause the Hotel Manager to prepare for delivery to Agent) an updated Annual Budget, which shall be subject to the approval of Agent, which approval shall not be unreasonably withheld or delayed (provided that with respect to the Hotel Property, so long as a Hotel Management Agreement is in effect, Agent shall have an approval right with respect to the Annual Budget only to the extent Operating Lessee Borrower and/or Hotel Fee Borrower have the right to approve any such budget). With respect to each Approved Annual Budget, such Borrower shall be permitted to Modify such Approved Annual Budget, without Agent’s prior review or approval, to make changes in budget line items in any such Approved Annual Budget (i) to account for increases in Taxes, Insurance Premiums and utilities expenses and (ii) to increase any such budget line item by up to ten percent (10%); provided, that, in no event shall the aggregate amount of all such changes pursuant to this clause (ii) result in increases exceeding five percent (5%) of the aggregate amount set forth in the most recent Approved Annual Budget without Agent’s approval. In the event any Borrower fails to deliver the information required under this clause (f) within the time period provided, such failure shall not constitute an Event of Default unless such Borrower fails to provide such information within thirty (30) days after Borrower has received written notice of such failure from Agent. Except as expressly set forth in this clause (f), no Borrower shall Modify any Approved Annual Budget unless a copy of such Modification is delivered to Agent at least twenty (20) days prior to the effectiveness thereof and is approved by Agent, which approval shall not be unreasonably withheld, conditioned or delayed. In addition, each Borrower shall deliver a copy of any new, Modified or updated Approved Annual Budget, if any, within twenty (20) days after the effectiveness thereof. Each request for approval of the Annual Budget or any Modification thereof shall contain a legend in capitalized bold letters on the top of the cover page stating: “THIS IS A REQUEST FOR CONSENT TO AN ANNUAL BUDGET OR A MODIFICATION OF AN ANNUAL BUDGET. AGENT’S RESPONSE IS REQUESTED WITHIN TEN (10) BUSINESS DAYS. AGENT’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD SHALL RESULT IN AGENT’S APPROVAL BEING DEEMED TO HAVE BEEN GRANTED.” In the event that Agent fails to grant or withhold its approval to any Annual Budget or Modification within such ten (10) Business Day period and such Borrower gives a duplicate notice upon the expiration of such ten (10) Business Day period in similar fashion providing that the failure to respond within five (5) Business Days of receipt of such second notice shall constitute deemed approval and Agent shall fail to respond to such second notice, then Agent’s approval shall be deemed to have been granted; provided, however that for so long as the 「Agent」 under this Agreement is Deutsche Bank or one of its Affiliates, there shall be no deemed approval under this Section 5.1(f), and any Annual Budget that requires Agent’s consent under this Agreement shall require the actual consent of Deutsche Bank or its applicable Affiliate. In the case of a withholding of consent, Agent shall state the grounds therefor.
111
49289660

(g)Notification by Borrowers. The following notifications:
(i)promptly upon any Borrower’s learning thereof, any material determination in all litigation and all proceedings before any Governmental Authority affecting Borrowers, any other Credit Party or the Mortgaged Property (or any portion thereof);
(ii)promptly upon the occurrence thereof (x) of any material change in any material fact or circumstance represented or warranted in this Agreement or any of the other Loan Documents, and of any other fact or circumstance, which might materially interfere with or adversely affect any Credit Party, the operation of the Mortgaged Property (or any portion thereof) or the ownership of any of the other Collateral, and (y) of any Default that is likely not to be cured within thirty (30) days after the occurrence thereof and of any Event of Default;
(iii)within five (5) Business Days after the occurrence thereof, of any acceleration of any material Indebtedness of any Borrower;
(iv)within ten (10) Business Days after the occurrence thereof, of any name change or change in Fiscal Year for any Borrower or any Guarantor;
(v)within ten (10) Business Days after the occurrence thereof, a copy of any material amendment to any Organizational Document of any Credit Party;
(vi)within five (5) Business Days after the delivery thereof, a copy of any material notice sent or received under Borrower’s Organizational Documents;
(vii)any receipt or delivery of a notice of, or the actual knowledge of any Borrower of, a default or failure by any Person to perform any of its obligations under the Permitted Encumbrances, any Material Agreements, any Management Agreement, or any other material agreement, contract or other instrument to which such Borrower is a party or by which any of its properties are bound which would reasonably be likely to have a Material Adverse Effect;
(viii)within five (5) Business Days after receipt of notice of the same from any Person, any suit, litigation, action, proceeding or any material adverse claim against or affecting any Borrower, the Mortgaged Property, any of the Collateral or the Liens securing the Obligations which, if adversely determined, would be reasonably likely to have a Material Adverse Effect;
(ix)within ten (10) Business Days after the occurrence thereof, any fire or other Casualty or Taking of any portion of the Mortgaged Property;
(x)promptly after the commencement thereof by any Borrower, any landlord/tenant litigation against any Lessee under a Material Lease or any other material landlord/tenant litigation against any Lessee;
(xi)within ten (10) Business Days after any Borrower’s knowledge thereof, notice of (y) the incurrence by any Borrower of any liability, or the occurrence of any event or action that could reasonably be expected to cause such Borrower to incur any liability, (1) with respect to any Pension Plan, including any liability under Section 412 of the Code or Title IV of ERISA, or (2) on account of a partial or complete withdrawal (as such terms are defined in Section 4203 and 4205 of ERISA, respectively) from, or unpaid contributions to, any Multiemployer Plan, or the termination or
112
49289660

insolvency of any such Multiemployer Plan, or (z) a Borrower’s engaging in any transaction in connection with which it could reasonably be expected to be subject to either a material civil penalty assessed pursuant to Section 502(i) of ERISA or a material tax imposed under Section 4975 of the Code, which notice shall include a copy of any report or notice that Borrower receive from, or file with, the Internal Revenue Service, the PBGC or the U.S. Department of Labor, a Pension Plan or a Multiemployer Plan concerning such event, or a description thereof if no such written report or notice is received or filed;
(h)Notice Regarding Contracts. Borrowers will notify Agent of any material changes in any Material Agreement. Borrowers will notify Agent if any Material Agreements are not renewed or replaced with similar agreements upon their expiration or termination, and shall include with such notification a detailed explanation of reasons for such termination, non-renewal and non-replacement.
(i)Material Adverse Effect Generally. Promptly upon any event or condition that has or is reasonably likely to have a Material Adverse Effect of which any Borrower has knowledge.
(j)Estoppel Certificates. (1) Within ten (10) Business Days after request therefor from Agent, Borrowers will deliver to Agent a certificate executed by Borrowers, stating the amount due under the Note and this Agreement and to the effect that as of the date of such certificate no Default or Event of Default has occurred and is continuing or, if any such Default or Event of Default has occurred and is continuing, describing in reasonable detail each such Default or Event of Default and the action, if any, taken or being taken to cure the same. (2) Promptly after request therefor from Agent (but, provided no Event of Default has occurred, not more than once per any calendar year), Borrowers will, in writing, request of each Lessee that it deliver to Agent a certificate executed by such retail Lessee, stating, among other things, that (i) the applicable Lease is in effect, (ii) the Rent payable under such Lease and (iii) that as of the date of such certificate, to the knowledge of such Lessee, no default or event of default, by the lessor or the Lessee, has occurred and is continuing under such Lease. (3) Promptly after request therefor from Agent (but, provided no Event of Default has occurred, not more than once per any calendar year), Borrowers will, in writing, request estoppel certificates from each party under any Operations Agreement, General Contractor’s Agreement and/or Architect’s Contract, in form and substance reasonably satisfactory to Agent or such Lender. (4) Promptly after request therefor from Agent (but, provided no Event of Default has occurred, not more than once per any calendar year), Borrowers will, in writing, request estoppel certificates from the Hotel Manager.
(k)Other Information. Promptly upon Agent’s request and at Borrowers’ expense, such other information concerning the business, properties, or financial condition of Borrowers and each other Credit Party, including the performance of their respective obligations under the Loan Documents, as Agent shall reasonably request. Further, promptly upon Agent’s reasonable request, Borrower or its ERISA Affiliate(s), as applicable, shall request from the administrator of any Multiemployer Plan the applicable estimated withdrawal liability pursuant to Section 101(l) of ERISA.
2.Garage Agreements, Maintenance and Repairs.
(a)Borrowers shall not, without Agent’s prior consent, (i) materially Modify or assign or consent to the assignment or termination of any provision of the Garage Management Agreement or Parking Garage Lease or waive or release any of its rights and remedies that would have a material adverse effect on the Garage Management Agreement or Parking Garage Lease, as applicable, or (ii) replace, terminate or otherwise substitute Garage
113
49289660

Manager with a new manager or Parking Manager with a new tenant or manager (as applicable, a “New Manager”); provided, however, that notwithstanding the foregoing, a Borrower may replace Garage Manager with a New Manager that is a Qualified Garage Manager and/or replace Parking Manager with a New Manager that is a Qualified Parking Manager, provided that (i) Agent receives prior notice of such replacement, (ii) such Borrower enters into a Replacement Garage Management Agreement and/or Replacement Parking Management Agreement with such New Manager that is approved by Agent, such approval not to be unreasonably withheld, provided, however, that the amount of management fees or rent received by the manager being replaced shall be deemed reasonable with respect to the New Manager, and (iii) such New Manager delivers a subordination agreement executed by such New Manager and such Borrower substantially in the form of the Garage Manager Subordination Agreement and/or Parking Manager Subordination Agreement delivered to Agent as on the Closing Date (subject to any changes requested by the New Manager and reasonably satisfactory to Agent). It is hereby agreed and understood that any Modification of any Management Agreement which results in a change in the amount or payment terms of any fee or similar payment to the applicable manager under any Management Agreement shall be deemed to be a material Modification which shall require Agent’s prior consent. Subject to the first sentence of this Section 5.2(a), Borrowers shall not enter into any management or similar agreement without the prior consent of Agent, not to be unreasonably withheld, conditioned or delayed, and if such consent is obtained, without the delivery of a subordination agreement reasonably acceptable to Agent by the manager thereunder. Borrowers shall observe, perform, and discharge all obligations, covenants, and warranties provided for under any Management Agreement to be kept, observed and performed by Borrowers. Borrowers shall diligently enforce its rights and or secure the performance by any manager under any Management Agreement.
(b)Borrowers shall observe, perform, and discharge all obligations, covenants, and warranties provided for under each Material Agreement to be kept, observed, and performed by Borrower. Borrowers shall diligently enforce its rights and/or secure the performance by each Person under the Material Agreements. Except as expressly permitted under Section 5.2(a) with respect to any Management Agreement, no Borrower shall enter into, surrender, terminate, cancel or materially Modify or enter into any agreement in substitution for, or consent to the assignment of any Material Agreement without, in each case, the prior consent of Agent, such consent not to be unreasonably withheld.
(c)The obligation of Borrowers to pay any fees or other compensation to any Manager and the right of any Manager to any sums due and all other rights and liens of any Manager shall be at all times subordinated to the rights of Agent pursuant to the Mortgage and the other Loan Documents. After the occurrence of an Event of Default, Agent shall have the right to terminate or require that Borrowers terminate any Management Agreement pursuant to the terms of the Garage Manager Subordination Agreement, Parking Manager Subordination Agreement, or other applicable subordination agreement. Any such termination shall not relieve Borrowers from their obligations pursuant to this Section 5.2. After the occurrence of a material breach under the Garage Management Agreement or Parking Management Agreement which provides any Borrower with a right to terminate such agreement or if such Manager becomes subject to a Bankruptcy Event and such Manager is not replaced by such Borrower, (x) within sixty (60) days following such Borrower’s knowledge of same or (y) within ninety (90) days following such Borrower’s knowledge of same if such Borrower has, after sixty (60) days, diligently found a Qualified Garage Manager or Qualified Parking Manager, as applicable, and the failure to finalize such replacement is due solely to a delay in approval by Agent or Lenders (to the extent such approval is required hereunder), then upon the occurrence of one of the events set forth in subsections (x) or (y) above, each such Borrower shall, at the request of Agent, terminate such Management Agreement and replace Manager with a Qualified Garage Manager or Qualified Parking Manager, as applicable, pursuant to a Replacement Garage Management
114
49289660

Agreement or Replacement Parking Management Agreement, as applicable, in accordance with the terms of this Agreement.
(d)Borrowers shall cause the Mortgaged Property to be at all times operated, maintained and managed in the manner and in accordance with the standards required pursuant to any Management Agreement, the Parking Agreement, the Leases, the Operating Agreements and the Permitted Encumbrances and otherwise in the manner required pursuant to this Agreement. Borrowers shall operate, maintain, manage and market the Garage Property in a manner similar to Comparable Parking Structures; provided that the foregoing shall not limit Borrower’s right to undertake Alterations to the extent otherwise permitted under this Agreement, or take any other action permitted by this Agreement. Borrower shall keep in effect at all times any contractual arrangements as may be necessary to meet the standard of operation described in the foregoing sentence or as may be required by Legal Requirements and all Operating Permits. Subject to Borrower’s rights to undertake Alterations to the extent permitted under this Agreement and without otherwise limiting any other provision set forth in this Agreement, Borrower shall keep the Mortgaged Property in good repair, working order and condition, so that the value of all or any portion of the Mortgaged Property will not be diminished in any material respect and shall supply the Mortgaged Property with all necessary supplies and equipment and promptly and diligently make or cause to be made all needful and proper repairs, renewals and replacements thereto, whether interior or exterior, structural or non-structural, ordinary or extraordinary, or foreseen or unforeseen. All such repairs, renewals and replacements shall be (i) done in a good and workmanlike manner, (ii) completed in accordance with all Legal Requirements, Permitted Encumbrances, the Parking Agreement, the Operations Agreements and (iii) at least equal in quality, value and class to that of the improvements which are the subject of such repairs, renewals and replacements.
(e)Borrowers shall not commit or permit any waste or deterioration (other than ordinary wear and tear) of or to the Mortgaged Property or other improvements, structures and equipment thereon, provided that the foregoing shall not limit Borrowers’ right to undertake any Alterations, all in accordance with the provisions of this Agreement, or take any other action permitted under this Agreement. Borrowers shall promptly replace any part of the Mortgaged Property taken by theft to the extent necessary to comply with the provisions of Section 5.2(d) and this Section 5.2(e). Once commenced, Borrower will, at its sole cost and expense, diligently and continuously take all steps to complete any Alterations in a good and workmanlike manner, and in compliance with all Legal Requirements, Permitted Encumbrances, the Operations Agreements, the Leases and otherwise with the requirements set forth in this Agreement.
3.Inspection of Mortgaged Property and Books and Records.
(a)Subject to the rights of Lessees, hotel guests, Hotel Manager and Parking Manager, Borrowers will permit Agent, its designated representatives or, if an Event of Default is continuing, any Lender accompanied by a representative of Agent, to enter upon and inspect the Mortgaged Property, or any part of the foregoing, in an emergency and at all other times during normal business hours and upon reasonably prior notice, with free access to inspect or examine the Mortgaged Property.
(b)Agent shall have no duty to any Person (including any Credit Party and Lenders) to make any inspection nor shall Agent incur any liability or obligation for not making any such inspection or, once having undertaken any such inspection, for making the inspection, not making the same carefully or properly, or for not completing the same; nor shall the fact that such inspection may not have been made by Agent relieve Borrowers of any obligations that it may otherwise have under the Loan Documents.
115
49289660

(c)Borrowers shall at all times keep complete and accurate books, records and accounts of its transactions. At Borrowers’ expense, Borrowers shall permit any representative of Agent, at all times during normal business hours upon reasonable notice, to examine and copy the books and records of Borrowers, and all contracts, statements, invoices, bills, and claims for labor, materials, and services supplied for the construction, reconstruction, maintenance, operation and repair of the Mortgaged Property.
4.Compliance with Legal, Insurance and Contractual Requirements.
(a)Subject to Borrowers’ right to contest as set forth in Section 5.8, Borrowers, at its sole cost and expense, shall comply and cause compliance of the Mortgaged Property and the construction, use, occupancy, possession, operation, management, maintenance and ownership thereof, with all Legal Requirements, Operations Agreements, all Permitted Encumbrances and all Insurance Requirements, whether or not compliance therewith shall require changes in, or interfere with the use and enjoyment of, the Mortgaged Property or any part thereof. Borrowers shall preserve and maintain all of its rights, privileges and Operating Permits necessary fully to operate the Mortgaged Property in accordance with Section 5.2. Neither Agent nor any Lender shall have any obligation or responsibility whatsoever for any matter incident to the Mortgaged Property or the maintenance and operation of the Mortgaged Property. Borrowers agree that all consents, approvals, orders or authorizations of, or registrations, declarations or filings with, or other actions with respect to or by, any Governmental Authority or any Permitted Encumbrance required for the Project, the operation and maintenance of the Mortgaged Property and otherwise in connection with the carrying out or performance of any of the transactions required or contemplated hereby or thereby (other than routine construction and occupancy permits which are not appropriate or necessary for the stages of construction in question) will be obtained when required.
(b)Borrowers, at their sole cost and expense, shall comply and cause compliance in all material respects with all of its covenants, obligations, agreements and undertakings under the Permitted Encumbrances, and any Material Agreements, and make all reasonable efforts to secure the performance of the obligations of the other parties thereto and to enforce its rights thereunder. Borrowers, at their sole cost and expense, shall comply and cause compliance with all of its material covenants, obligations, agreements and undertakings under its other agreements, and make all reasonable efforts to secure the performance of the obligations of the other parties thereto and to enforce its rights thereunder. Borrowers shall not terminate, cancel, surrender or materially Modify or enter into any agreement in substitution for any Permitted Encumbrance or any Material Agreement if the result of the foregoing would result in any Borrower failing to diligently and expeditiously pursue the Project.
(c)Borrowers, at their sole cost and expense, shall comply with all rights of way or use, declarations or transfers of air rights, other declarations, zoning lot development agreements, privileges, franchises, licenses, servitudes, easements and other encumbrances affecting or forming a part of the Mortgaged Property or any portion thereof, and all instruments creating or evidencing the same, in each case, to the extent compliance therewith is required of Borrowers under the terms thereof. Borrowers shall not take any action which results in a forfeiture or termination of the rights afforded to Borrowers under any such instruments in any manner that would have a Material Adverse Effect. Borrowers will make all reasonable efforts to secure the performance of the obligations of the grantors or other parties thereto and to enforce Borrowers’ rights thereunder. Borrowers shall not, without the prior reasonable consent of Agent, amend any such instruments.
5.Appraisals. Agent shall be entitled to obtain, at Borrowers’ expense, an Appraisal (a) if required for regulatory purposes applicable to Agent or any Lender, (b) at any time that an Event of Default has occurred and is continuing, (c) in connection with the foreclosure of the
116
49289660

Mortgage or deed-in-lieu thereof or the exercise of other remedies against Borrowers or any other Credit Party hereunder or under any other Loan Document and (d) after the occurrence of a Casualty or a Taking. Agent may, at Lenders’ expense, obtain an Appraisal or an Appraisal Update at any other time. Borrowers shall cooperate with Agent and any appraiser retained by Agent and their agents and employees in connection with such Appraisals or Appraisal Updates, as applicable.
6.Payment of Impositions. Subject to Borrowers’ right to contest in accordance with and as set forth in Section 5.8, Borrowers shall pay or cause to be paid all Impositions on or before the due date thereof and in any event before any fine, penalty, interest or cost may be added for non-payment. Borrowers promptly shall deliver to Agent, upon request of Agent, copies of official receipts or other evidence satisfactory to Agent evidencing the payment of the Impositions. Upon Agent’s request, which shall be made no more frequently than quarterly (provided that no Event of Default exists), Borrower shall provide an Officer’s Certificate setting forth the actual amount of Hotel Taxes due and the actual amount paid for the calendar quarter immediately preceding the date of such certificate; provided if a Hotel Management Agreement is in effect, Borrowers’ obligation shall be limited to providing Agent with any Hotel Taxes reconciliation Hotel Manager provides to Borrowers. Borrowers shall (or shall cause Hotel Manager to) pay or remit to each Person entitled thereto all other amounts of Hotel Pass-Through Income prior to delinquency. Borrowers shall not claim or demand or be entitled to any credit or credits on account of the Obligations for any Imposition or any part thereof and no deduction shall otherwise be made or claimed from the taxable value of the Mortgaged Property or any part thereof, by reason of the Mortgage or the Obligations.
7.Liens and Encumbrances; Ownership of Collateral. Hotel Fee Borrower shall at all times be the absolute and sole owner of the Hotel Property, and Garage Fee Borrower shall at all times be the absolute and sole owner of the Garage Property, Operating Lessee Borrower shall at all times be the absolute and sole owner of the leasehold interest in the Hotel Property, and Borrower shall be the absolute and sole owner of the legal and beneficial title of, and have good and marketable title in fee simple absolute to, the other Collateral, in each case, free and clear of any Lien except (i) the Permitted Encumbrances, and (ii) any mechanic’s Liens that Borrowers discharge of record (by payment, bonding or otherwise) within the earlier of (x) thirty (30) days after Borrower becomes aware of such Lien and (y) thirty (30) days after written notice by Agent. In furtherance of the foregoing and without limiting any other provision of this Agreement and the other Loan Documents, except as otherwise permitted pursuant to this Agreement, Borrowers shall not make, grant, Modify or terminate any rights of way or use, declarations, transfers of air rights, other declarations, zoning lot development agreements, privileges, franchises, licenses, servitudes, easements and other encumbrances over, under or on the Land or Improvements or any portion thereof, in any manner that would have a Material Adverse Effect without the prior consent of Agent. Borrowers shall not directly or indirectly assist in the creation, permit, cause to be created or permit to remain, and shall promptly discharge or cause to be discharged, any Lien on any direct equity or beneficial interest in any Borrower.
8.Permitted Contests. After prior written notice to Agent and provided no Default or Event of Default shall then exist, Borrowers at their sole cost and expense may contest, or cause to be contested, by appropriate legal proceedings conducted in good faith and with due diligence, the amount, validity or application, in whole or in part, of any Imposition, Legal Requirement, Insurance Requirement or Lien and defer the payment thereof or compliance therewith, subject, however, to the following conditions:
(a)in the case of an unpaid Imposition, such proceedings shall suspend the collection or enforcement thereof, as the case may be, from Borrowers, Agent, Lenders and the Mortgaged Property;
117
49289660

(b)neither the Mortgaged Property, any Rent nor any part thereof or interest therein, in the reasonable judgment of Agent, would be in any danger of being sold, forfeited, terminated, canceled or lost in any respect;
(c)in the case of a Legal Requirement, Borrowers would not be in danger of criminal liability for failure to comply therewith and neither Agent nor any Lender would be in danger of any civil or criminal liability for failure to comply therewith;
(d)Borrowers shall have furnished such security, if any, as may be required in the proceedings or as may be reasonably requested by Agent to ensure the payment of any Imposition or the compliance with any Legal Requirement or Insurance Requirement, as the case may be, together with any interest or penalties which may become due in connection therewith;
(e)the non-payment of the whole or any part of any Imposition or other charge during the pendency of any such action will not result in the delivery of a tax deed to the Mortgaged Property or any part thereof, because of such non-payment;
(f)the payment of any sums required to be paid under this Agreement and the other Loan Documents (other than any unpaid Imposition at the time being contested in accordance with this Section 5.8) shall not be interfered with or otherwise affected;
(g)reserved; and
(h)Borrowers comply with any and all conditions or requirements set forth in the Leases and any other agreement to which any Borrower is a party or otherwise bound with respect to such contest;
provided, that, the conditions set forth in clauses (a), (c), (d), and (e) shall not be conditions to a permitted contest pursuant to this Section 5.8 if Borrowers pay or bond over and otherwise comply with such Imposition, Legal Requirement, Insurance Requirement or Lien.
9.Alterations. Without Agent’s prior written approval, Borrowers shall not alter or add to the Improvements or otherwise make any Alterations; provided however that (i) the Phase Zero Renovation Project and PIP Project shall be governed by the provisions of Sections 2.20, 5.40, 5.41, 5.42, 5.43 and 5.44 (and not this Section 5.9) and (ii) no Agent approval shall be required for Alterations which are permitted under the Hotel Management Agreement, Parking Agreement, Operations Agreements, and Permitted Encumbrances, as applicable and (I) constituting tenant improvement work performed pursuant to any Existing Lease and any Lease entered into after the Closing Date in accordance with this Agreement; (II) performed as part of a restoration or (III) the cost of which individually, or in the aggregate (with respect to all related Alterations), do not exceed the Alterations Threshold in any twelve month period if such Alterations (i) are made in accordance with all applicable Legal Requirements, in all material respects, (ii) do not purport to alter any structural components or building systems of the Improvements, and (iii) are not otherwise reasonably likely to result in any Material Adverse Effect.
10.Leases.
(a)No Borrower shall enter into, Modify, terminate, consent to the assignment or surrender of, or grant a waiver of any provision or right of Borrower under any Lease or related Lease guaranty (any of the foregoing, a “Leasing Action”) except in accordance with the terms and provisions of this Section 5.10. Notwithstanding the foregoing, any Borrower may take any Leasing Action with respect to a Lease that is not a Material Lease without Agent’s
118
49289660

prior consent; provided, however, that all such Leases and all Modifications and renewals of such Leases executed after the date hereof shall (i) be on commercially reasonable terms, (ii) provide that such Lease is subordinate to the lien of the Mortgage and that the Lessee will attorn to Agent and any purchaser at a foreclosure sale, (iii) not be to an Affiliate of any Borrower, and (iv) not contain any option to purchase, any right of first refusal to purchase, or any right to terminate (except in the event of the destruction or condemnation of substantially all of the Mortgaged Property or for failure to deliver the promises or other landlord defaults) on the part of the Lessee. Each guaranty of each such Lease shall provide that such guaranty shall remain in full force and effect, and that guarantor thereunder shall perform for the benefit of Agent or such purchaser, upon attornment by the Lessee. Additionally, no Borrower shall enter into, extend, renew or Modify (including, without limitation, any subletting or assignment thereunder not contemplated by the express terms of such Lease) any Material Lease without the prior written consent of Agent; provided that Agent shall not unreasonably withhold, condition or delay its consent to any Material Lease or Modification thereto so long as no Event of Default is continuing. Borrowers shall be permitted to relocate Lessees within the Improvements, provided that the Leases entered into by such Lessees otherwise comply with the provisions of this Section 5.10. Borrowers shall be permitted to terminate without Agent’s prior consent (i) any Lease that is not a Material Lease and (ii) any Material Lease in connection with a monetary or material non-monetary default (after giving effect to any all applicable cure and grace periods) by the Lessee thereunder, as long as in each case, such termination would not result in any Borrower’s default under the subject Lease. With respect to any Material Leases that do not already provide for the Lessee to subordinate to the Mortgage, Agent may, in its sole discretion, require a subordination non-disturbance and attornment agreement in form and substance reasonably satisfactory to Agent. If requested by Borrowers, Agent agrees to enter into a subordination non-disturbance and attornment agreement, on Agent’s standard form together with customary modifications requested by the Lessee, with respect to any Material Lease.
(b)Any Leasing Action that requires Agent’s consent shall be delivered to Agent for approval not less than ten (10) Business Days prior to the effective date of such Leasing Action, together with all other materials reasonably necessary in order to evaluate such Leasing Action. Each such request for approval and consent shall contain a legend in capitalized bold letters on the top of the cover page stating: “THIS IS A REQUEST FOR CONSENT TO A LEASING ACTION. AGENT’S RESPONSE IS REQUESTED WITHIN TEN (10) BUSINESS DAYS. AGENT’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD SHALL RESULT IN AGENT’S CONSENT BEING DEEMED TO HAVE BEEN GRANTED.” In the event that Agent fails to grant or withhold its approval and consent to such Leasing Action within such ten (10) Business Day period and Borrowers give a duplicate notice upon the expiration of such ten (10) Business Day period in similar fashion providing that the failure to respond within five (5) Business Days of receipt of such second notice shall constitute deemed approval and Agent shall fail to respond to such notices, then Agent’s approval and consent shall be deemed to have been granted; provided, however that for so long as the 「Agent」 under this Agreement is Deutsche Bank or one of its Affiliates, there shall be no deemed consent under this Section 5.10(b), and any Leasing Action that requires Agent’s consent under this Agreement shall require the actual consent of Deutsche Bank or its applicable Affiliate. In the case of a withholding of consent, Agent shall state the grounds therefor.
(c)Without limiting Section 5.10(a) and to the extent not previously delivered to Agent, Borrowers shall deliver to Agent a copy of any Lease, and any Modification thereof within five (5) Business Days after requested by Agent.
(d)Borrowers shall faithfully keep and perform its obligations under each Lease and shall not permit any Lessee to prepay rent pursuant to the terms of any Lease other than the usual prepayment of rent as would result from the acceptance on the first day of each month of the rent for the ensuing month, according to the terms of any Leases. Borrowers shall,
119
49289660

on a quarterly basis or such more frequent basis as Agent may elect (but not more frequently than monthly), (i) notify Agent, in writing, of any defaults by any Lessee or Lease guarantor and (ii) deliver to Agent a copy of all termination notices, default notices, notices claiming any offset rights and all other material notices from any Lessee or Lease guarantor to Borrowers or from Borrowers to any Lessee or Lease guarantor.
(e)In addition to any leasing report provided pursuant to Section 5.1, Borrowers shall furnish to Agent, within ten (10) days after a request by Agent to do so, a certified statement of Borrowers containing the names of all Lessees, the terms of the Leases, the space occupied, the Revenue payable and the securities deposited thereunder, and the name of any Lease guarantor thereof, together with true copies of each Lease and any Lease guaranty thereof or amendments and supplements thereto not previously furnished to Agent and any other information with respect to Borrowers’ leasing activities and policies as Agent shall reasonably request.
(f)Borrowers shall appear in and defend any action or proceeding arising under, occurring out of, or in any manner connected with, the Leases and Lease guaranties or the obligations, duties, or liabilities of Borrowers, any Lessee or any Lease guarantor. Borrowers shall pay all costs and expenses of Agent, including reasonable attorneys’ fees, in any action or proceeding in which Agent may appear.
(g)Borrowers shall use commercially reasonable efforts to enforce or secure the performance of the obligations of the Lessees and all Lease guarantors. Borrowers shall not waive, discount, set-off, compromise, or in any manner release or discharge any Lessee or Lease guarantor of and from any material obligations, covenants, conditions, and agreements by said Lessee and Lease guarantor to be kept, observed, and performed, in the manner and at the place and time specified in the applicable Lease and Lease guaranty, other than as permitted pursuant to Section 5.10(a).
(h)Borrowers shall not, and shall not allow any Person on behalf of Borrowers, to enter into any agreement with any Affiliate of any Borrower to pay lease commissions with regard to any Lease which agreement is not subordinate to Agent’s rights, interests and claims under the Loan Documents.
(i)Borrowers shall pay all reasonable out-of-pocket expenses of Agent, including Agent’s Counsel Fees, incurred in connection with the review of any proposed Lease, Modification, waiver, termination or surrender required under this Section 5.10 or other otherwise requested by Borrowers.
11.Required Insurance.
(a)Insurance Policies.
(i)Borrowers, or Hotel Manager on behalf of the Hotel Property, at its sole cost and expense, shall obtain and maintain during the entire Term, or cause to be maintained, Insurance Policies for Borrowers and the Mortgaged Property providing at least the following coverages:
(A)(1) Property insurance against loss or damage by fire, any type of wind (including named storms), lightning and such other perils as are included in a standard 「special form」 or 「all-risk」 policy, and against loss or damage by all other risks and hazards covered by a standard extended coverage insurance policy, with no exclusion for damage or destruction caused by the acts of 「Terrorists」 (as defined by TRIPRA) (or, subject to Section 5.11(a)(x) below,
120
49289660

standalone coverage with respect thereto) riot and civil commotion, vandalism, malicious mischief, burglary and theft (A) in an amount equal to one hundred percent (100%) of the 「Full Replacement Cost」 of the Mortgaged Property, which for purposes of this Agreement shall mean actual replacement value (exclusive of costs of excavations, foundations, underground utilities and footings) with a waiver of depreciation; (2) have deductibles no greater than $50,000 with the exception of water damage at $250,000 deductible, and windstorm or earthquake, which may have deductibles not to exceed five percent (5%) of the total insurable value of the Property per occurrence (3) containing an agreed amount endorsement with respect to the Improvements and personal property at the Mortgaged Property waiving all co-insurance provisions; and (4) containing an 「Ordinance or Law Coverage」 endorsement if any of the Improvements or the use of the Mortgaged Property shall at any time constitute legal non-conforming structures or uses, and compensating for loss to the undamaged portion of the building (with a limit equal to replacement cost), the cost of demolition and the increased costs of construction, each in amounts as required by Agent. In addition, Borrower shall obtain: (y) if any portion of the Improvements is currently or at any time in the future located in a federally designated 「special flood hazard area」, flood hazard insurance in an amount equal to the lesser of (i) the Outstanding Principal Balance or (ii) the maximum amount of such insurance available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended, or such greater amount as Agent shall require; and (z) earthquake insurance in amounts and in form and substance satisfactory to Agent (provided that Lender shall not require earthquake insurance unless the Property is located in seismic zone 3 or 4, provided that the insurance pursuant to clauses (y) and (z) above shall be on terms consistent with the comprehensive all risk insurance policy required under this Section 5.11(a)(i)(A);
(B)commercial general liability insurance, including a broad form comprehensive general liability endorsement and coverages against claims for personal injury, bodily injury, death or property damage occurring upon, in or about the Mortgaged Property, such insurance (1) to be on the so-called 「occurrence」 form and containing minimum limits per occurrence of One Million Dollars ($1,000,000), with a combined limit per policy year, excluding umbrella coverage, of not less than Two Million Dollars ($2,000,000); (2) to continue at not less than the aforesaid limit until required to be changed by Agent by reason of changed economic conditions making such protection inadequate; and (3) to cover at least the following hazards: (w) premises and operations; (x) at all times during which construction or alterations are being made with respect to the Improvements, Borrower shall cause to be maintained products and completed operations coverage on an 「if any」 basis (y) independent contractors; and (z) contractual liability for all legal contracts to the extent the same is available;
(C)rental loss and/or business income interruption insurance (1) with loss payable to Lender; (2) covering all risks required to be covered by the insurance provided for in Section 5.11(a)(i)(A) above and Section 5.11(a)(x) below; (3) covering a period of restoration of twenty four (24) months and containing an extended period of indemnity endorsement which provides that after the physical loss to the Improvements and personal property has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss, or the expiration of twelve (12) months from the date that the Mortgaged Property is repaired or replaced and
121
49289660

operations are resumed, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period; and (4) in an amount equal to one hundred percent (100%) of the projected Rents from the Mortgaged Property for a period of twenty four (24) months from the date that the Mortgaged Property is repaired or replaced and operations are resumed. The amount of such business income insurance shall be determined prior to the date hereof and at least once each year thereafter based on Borrower’s reasonable estimate of the Rents from the Mortgaged Property for the succeeding twenty four (24) month period. All proceeds payable to Agent pursuant to this Section 5.11(a)(i)(C) shall be held by Agent and shall be applied to the Obligations secured by the Loan Documents from time to time due and payable hereunder and under the Notes; provided, however, that nothing herein contained shall be deemed to relieve Borrower of its Obligations to pay the outstanding principal amount of the Loan, together with all interest and other Indebtedness due and payable in connection therewith, and all other outstanding Obligations on the respective dates of payment provided for in the Notes and the other Loan Documents except to the extent such amounts are actually paid out of the proceeds of such business income insurance;
(D)at all times during which structural construction, repairs or alterations are being made with respect to the Improvements, and only if the property or liability coverage form does not otherwise apply, (1) commercial general liability and umbrella liability insurance covering claims not covered by or under the terms or provisions of the above-mentioned commercial general liability and umbrella liability insurance policy as set forth in Section 5.11(a)(i); and (2) the insurance provided for in Section 5.11(a)(i)(A) above written in a so-called builder’s risk completed value form (w) on a non-reporting basis, (x) against all risks insured against pursuant to Section 5.11(a)(i)(A) above, (y) including permission to occupy the Mortgaged Property, and (z) with an agreed amount endorsement waiving co-insurance provisions;
(E)workers’ compensation, subject to the statutory limits of the state in which the Mortgaged Property is located, and employer’s liability insurance with limits which are required from time to time by Agent in respect of any work or operations on or about the Mortgaged Property, or in connection with the Mortgaged Property or its operation (if applicable);
(F)comprehensive boiler and machinery/equipment breakdown insurance, if applicable, in amounts as shall be reasonably required by Agent on terms consistent with the commercial property insurance policy required under Section 5.11(a)(i)(A) above;
(G)umbrella liability insurance in addition to primary coverage in an amount not less than Fifty Million Dollars ($50,000,000) per occurrence on terms consistent with the commercial general liability, auto liability and employers’ liability insurance policies required under Sections 5.11(a)(i)(B) (E) and (H);
(H)commercial automobile liability coverage for all owned and non-owned vehicles, including rented and leased vehicles containing minimum limits per occurrence, including umbrella coverage, with limits which are required from time to time by Agent;
(I)reserved; and
122
49289660

(J)upon sixty (60) days’ notice, such other reasonable insurance and in such reasonable amounts as Agent from time to time may reasonably request against such other insurable hazards which at the time are commonly insured against for properties similar to the Mortgaged Property located in or around the region in which the Mortgaged Property is located.
(ii)All insurance provided for in Section 5.11(a)(i) shall be obtained under valid and enforceable policies. Not less than ten (10) days prior to the expiration dates of the Insurance Policies theretofore furnished to Agent, certificates of insurance evidencing the Insurance Policies (and, upon the written request of Agent, copies of such Insurance Policies accompanied by evidence satisfactory to Agent of payment of the premiums then due thereunder (the “Insurance Premiums”)), shall be delivered by Borrower to Agent.
(iii)Any blanket Insurance Policy shall otherwise provide the same protection as would a separate Insurance Policy insuring only the Mortgaged Property in compliance with the provisions of Section 5.11(a)(i) (any such blanket policy, an “Acceptable Blanket Policy”). To the extent that the Insurance Policies are maintained pursuant to an Acceptable Blanket Policy that covers more than one location within a one thousand foot radius of the Property (the “Radius”), the limits of such Acceptable Blanket Policy must be sufficient to maintain coverage as set forth in Section 5.11(a) for the Property and any and all other locations combined within the Radius that are covered by such blanket policy calculated on a total insured value basis.
(iv)All Insurance Policies provided for or contemplated by Section 5.11(a)(i) shall name the applicable Borrower as a named insured and, with respect to policies of liability insurance, except for the Insurance Policies referenced in Section 5.11(a)(i)(E), shall name Agent and its successors and/or assigns as additional insured, as its interests may appear, and in the case of Policies of property insurance, including but not limited to special form/all-risk, boiler and machinery, terrorism, windstorm, flood, rental loss and/or business interruption and earthquake insurance, shall contain a standard non-contributing mortgagee and lender’s loss payable clauses-in favor of Agent providing that the loss thereunder shall be payable to Agent unless below the threshold for Borrower to handle such claim without Agent intervention as provided in Section 5.12 below. Additionally, if any Borrower obtain property insurance coverage in addition to or in excess of that required by Section 5.11(a)(i)(A), then such insurance policies shall also contain a standard non-contributing mortgagee and lender’s loss payable clauses in favor of Agent providing that the loss thereunder shall be payable to Agent.
(v)All Insurance Policies provided for in Section 5.11(a)(i), except for the Insurance Policies referenced in Section 5.11(a)(i)(E) and (a)(i)(H), shall contain clauses or endorsements to the effect that:
(vi)no act or negligence of any Borrower, or anyone acting for any Borrower, or of any Lessee or other occupant, or failure to comply with the provisions of any Insurance Policy, which might otherwise result in a forfeiture of the insurance or any part thereof, shall in any way affect the validity or enforceability of the insurance insofar as Agent is concerned;
(A)the Insurance Policy (other than any liability Insurance Policy referenced in Section 5.11(a)(i)(B)(G) shall not be canceled without at least thirty (30) days’ written notice to Agent and any other party named therein as an additional insured (other than in the case of non-payment in which case only ten (10) days prior notice, or the shortest time allowed by
123
49289660

applicable Legal Requirement (whichever is longer), will be required) and shall not be materially changed (other than to increase the coverage provided thereby) without such a thirty (30) day notice;
(B)Agent shall not be liable for any Insurance Premiums thereon or subject to any assessments thereunder; and
(C)the issuers thereof shall give notice to Agent if the Insurance Policies have not been renewed ten (10) days prior to its expiration.
(vii)If at any time Agent is not in receipt of written evidence that all insurance required hereunder is in full force and effect, Agent shall have the right, without notice to Borrowers, to take such action as Agent deems necessary to protect its interest in the Mortgaged Property, including the obtaining of such insurance coverage as Agent in its sole discretion deems appropriate and all premiums incurred by Agent in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by Borrowers to Agent upon demand and until paid shall be secured by the Mortgage and shall bear interest at the Default Rate.
(viii)In the event of foreclosure of the Mortgage or other transfer of title to the Mortgaged Property in extinguishment in whole or in part of the Obligations, all right, title and interest of Borrowers in and to the Insurance Policies that are not blanket Policies then in force concerning the Mortgaged Property and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure or Agent or other transferee in the event of such other transfer of title.
(ix)To the extent available, the property insurance, commercial general liability, umbrella insurance and rental loss and/or business interruption insurance required under Sections 5.11(a)(i)(A), (B), (C), (D) and (G) above shall cover perils of terrorism and acts of terrorism (or at least not specifically exclude same) and Borrowers shall maintain property insurance, commercial general liability, umbrella liability insurance and rental loss and/or business interruption insurance for loss resulting from perils and acts of terrorism on terms (including amounts) consistent with those required under Sections 5.11(a)(i)(A), (B), (C), (D) and (G) above (or at least not specifically excluding same) at all times during the Term of the Loan.
(x)Notwithstanding anything in Sections 5.11(a)(i)(A) or 5.11(a)(ix) above to the contrary, Borrowers shall be required to obtain and maintain coverage in its property Insurance Policy (or by a separate Insurance Policy) against loss or damage by terrorist acts in an amount equal to one hundred percent (100%) of the 「Full Replacement Cost」 of the Mortgaged Property; provided that such coverage is commercially available. In the event that such coverage with respect to terrorist acts is not included as part of the 「all risk」 property policy required by Section 5.11(a)(i)(A) above, Borrower shall, nevertheless be required to obtain coverage for terrorism (as standalone coverage) in an amount equal to one hundred percent (100%) of the 「Full Replacement Cost」 of the Mortgaged Property plus the rental loss and/or business interruption coverage under Section 5.11(a)(i)(C) above; provided that such coverage is commercially available. Borrower shall obtain the coverage required under this clause (x) from a carrier which otherwise satisfies the rating criteria specified in Section 5.11(b) below (a “Qualified Carrier”) or in the event that such coverage is not available from a Qualified Carrier, Borrowers shall obtain such coverage from the highest rated insurance company providing such coverage. Notwithstanding the foregoing, for so long as TRIPRA is in effect (including any extensions thereof or if another federal governmental program is in effect relating to 「acts of terrorism」 which provides substantially similar protections as
124
49289660

TRIPRA), Lender shall accept terrorism insurance which covers against 「covered acts」 as defined by TRIPRA (or such other program) as full compliance with this Section 5.11(a)(x) as it relates to the risks that are required to be covered.
(b)Insurance Company. All Insurance Policies required pursuant to Section 5.11(a): (i) shall be issued by companies licensed to do business in the state where the Mortgaged Property is located, with (A) a financial strength and claims paying ability rating of 「A-」 or better by S&P, or 「A-VIII」 or better in the current Best’s Insurance Reports, (ii) shall, with respect to all property insurance policies, name Agent and its successors and/or assigns as their interest may appear as the agent and mortgagee; (iii) shall, with respect to all property insurance policies and rental loss and/or business interruption insurance policies, contain a Standard Mortgagee Clause and a Lender’s Loss Payable Endorsement, or their equivalents, naming Agent as the person to whom all payments made by such insurance company shall be paid; (iv) shall, with respect to all liability policies, name Agent and its successors and/or assigns as an additional insured; (v) shall contain a waiver of subrogation against Agent; and (vi) shall contain such provisions as Agent deems reasonably necessary or desirable to protect its interest including endorsements providing (A) that neither Borrower, Agent nor any other party shall be a co-insurer under said Insurance Policies, (B) that Agent shall receive at least thirty (30) days prior written notice of any modification, reduction or cancellation, and (C) in addition to complying with any other requirements expressly set forth in Section 5.11 for a deductible per loss of an amount not more than that which is customarily maintained by prudent owners of properties with a standard of operation and maintenance comparable to and in the general vicinity of the Mortgaged Property, but in no event in excess of an amount reasonably acceptable to Agent. No insurance policy required hereunder shall include any so called 「terrorist exclusion」 or similar exclusion or exception to insurance coverage relating to the acts of terrorist groups or individuals; provided that, for so long TRIPRA is in effect, Agent shall accept terrorism insurance with coverage against acts which are 「certified」 within the meaning of TRIPRA. In addition to the insurance coverages described in Section 5.11(a) above, Borrower shall obtain such other insurance as may from time to time be reasonably required by Agent in order to protect its interests. To the extent requested by Agent, complete copies of the Insurance Policies shall be delivered to Agent at the address below (or to such other address or Person as Agent shall designate from time to time by notice to Borrowers) on the date hereof with respect to the current Insurance Policies and within thirty (30) days after the effective date thereof with respect to all renewal Insurance Policies:
DEUTSCHE BANK AG, NEW YORK BRANCH
1 Columbus Circle, 15th Floor
New York, New York 10019
Attn: Joanne Marcino
(c)Subject to Section 4.6, Borrowers shall pay the Insurance Premiums annually in advance as the same become due and payable and shall furnish to Agent evidence of the renewal of each of the Insurance Policies with receipts for the payment of the Insurance Premiums or other evidence of such payment reasonably satisfactory to Agent. Within thirty (30) days after request by Agent, Borrowers shall obtain such increases in the amounts of coverage required hereunder as may be reasonably requested by Agent, taking into consideration changes in the value of money over time, changes in liability laws, changes in prudent customs and practices.
12.Damage or Destruction.
(a)Borrowers will promptly give notice to Agent of any Casualty that meets or exceeds the Casualty Proceeds Disbursement Threshold. Such notice also shall generally
125
49289660

describe the nature and extent of such Casualty and set forth Borrower’s best estimate of the cost of Restoration.
(b)Agent shall be entitled to receive all insurance proceeds payable with respect to the Mortgaged Property on account of a Casualty if the insurance proceeds with respect thereto shall be greater than the Casualty Proceeds Disbursement Threshold. Borrowers hereby irrevocably assigns, transfers and sets over to Agent all rights of Borrowers to any such insurance proceeds, award or payment; provided, however, that the insurer may make payments directly to Borrowers to reimburse Borrowers for Restoration costs already paid by Borrowers to the extent Borrowers would have been entitled to receive a disbursement of insurance proceeds held by Agent. Borrowers hereby irrevocably authorizes and empowers Agent, in the name of Borrowers or otherwise, to file for and prosecute in its own name what would otherwise be Borrower’s claim for any such insurance proceeds. Notwithstanding the foregoing, so long as no Event of Default shall have occurred and shall then be continuing and provided Borrowers promptly file all claims and diligently prosecutes same, Borrowers shall have the right to file, adjust, settle and prosecute any claim for such insurance proceeds; provided, however, that Borrowers shall not agree to any adjustment or settlement of any such claim payable with respect to a Casualty the insurance proceeds with respect to which are greater than (x) with respect to the Hotel Property, $2,766,000 and (y) with respect to the Garage Property, $922,000 (as applicable, the “Casualty Proceeds Disbursement Threshold”) without Agent’s prior consent, not to be unreasonably withheld, conditioned or delayed. Borrowers shall promptly after demand pay to Agent all out-of-pocket costs and expenses (including the fee of any insurance consultant or adjuster and reasonable attorneys’ fees and disbursements) incurred by Agent in connection with a Casualty and seeking and obtaining any insurance proceeds, award or payment with respect thereto. Net Insurance Proceeds held by Agent, together with any interest earned thereon, shall constitute additional security for the payment of the Obligations (a security interest therein being granted hereby), until disbursed in accordance with this Section 5.12 or Section 5.14, as the case may be. Notwithstanding the foregoing, or anything else herein to the contrary, all proceeds of business interruption/rent loss insurance may be collected by and shall be paid to Agent and applied in accordance with Section 5.12(g).
(c)At all times during the Term, Borrowers will, at its sole cost and expense, promptly commence and diligently and continuously perform to completion the Restoration in a good and workmanlike manner, and in compliance with all Legal Requirements, Permitted Encumbrances, the Leases, the Parking Agreement, the Parking Garage Lease, the Hotel Management Agreement, as applicable, and otherwise with the requirements set forth in this Agreement, whether or not Borrowers shall have satisfied the requirements of Section 5.12(d) in order to cause the Net Insurance Proceeds to be made available for such Restoration and whether or not such insurance proceeds on account of the Casualty shall be sufficient for such purpose,.
(d)In the case of any Casualty with respect to which the insurance proceeds payable are equal to or greater than the Casualty Proceeds Disbursement Threshold, the Net Insurance Proceeds shall be held by Agent, and be made available to the Borrowers for Restoration upon the determination of Agent, in its sole discretion, that the Release Conditions (Casualty) are satisfied (and to the extent Agent makes a determination that such Release Conditions (Casualty) have been satisfied, the procedure in clause (i) shall apply):
(i)The Net Insurance Proceeds shall be disbursed from time to time (but not more frequently than once in any month) by Agent as Restoration progresses upon receipt by Agent of (1) an Officer’s Certificate dated not more than ten (10) Business Days prior to the application for such payment, requesting such payment or reimbursement and describing the work performed that is the subject of such request, the parties that performed such work and the actual cost thereof, and also certifying that such work and materials are or, upon disbursement of the payment requested to the parties
126
49289660

entitled thereto, will be free and clear of Liens other than Permitted Encumbrances, (2) evidence reasonably satisfactory to Agent that (A) all materials installed and work and labor performed in connection with the Restoration have been or, upon disbursement of the payment requested to the parties entitled thereto, will be paid for in full, and (B) there exists no notices of pendency, stop orders, mechanic’s liens or notices of intention to file same or any Liens or encumbrances of any nature (other than Permitted Encumbrances) whatsoever on the Mortgaged Property arising out of the Restoration which have not been either fully bonded to the satisfaction of Agent or discharged of record or in the alternative, fully insured to the satisfaction of Agent by the Title Company that issued the Title Policy, and (3) an Independent Architect’s certificate certifying performance of the Restoration together with an estimate of the cost to complete the Restoration. All 「hard cost」 contracts in connection with the Restoration shall provide for 「retainage」 in an amount reasonably satisfactory to Agent. Final payment of all Net Insurance Proceeds remaining with Agent shall be made upon receipt by Agent of a certification by an Independent Architect, as to the completion of the Restoration substantially in accordance with the submitted plans and specifications and final Lien releases, as certified pursuant to an Officer’s Certificate, and delivery of a certificate of occupancy with respect to the work, or, if not applicable, an Officer’s Certificate to the effect that a certificate of occupancy is not required.
(ii)The release of any Net Insurance Proceeds shall be subject to the satisfaction (or waiver by Agent) of each of the following conditions (each a “Release Condition (Casualty)” and collectively, the “Release Conditions (Casualty)”):
(A)less than twenty-five percent (25%) of the total floor area of the Improvements on the applicable Property has been damaged, destroyed or rendered unusable as a result of such Casualty;
(B)with respect to the Garage Property, the Parking Agreement and Parking Garage Lease shall remain in full force and effect during and after the completion of the Restoration;
(C)with respect to the Hotel Property, such Casualty does not result in a termination of the Hotel Management Agreement, and the Restoration is conducted in accordance with the terms and conditions of the Hotel Management Agreement;
(D)the Loan to Value Ratio after giving effect to the Restoration, shall be equal to or less than 50%;
(E)no Default or Event of Default shall have occurred and be continuing;
(F)Borrowers shall have delivered to Agent within sixty (60) days after the occurrence of the Casualty, a notice of Borrowers’ desire to undertake the Restoration;
(G)Borrower shall have demonstrated to the reasonable satisfaction of Agent that the Restoration will be completed in accordance with any requirements under the Operations Agreements, Permitted Encumbrances, and Hotel Management Agreement (if and to the extent applicable);
127
49289660

(H)Borrowers shall have demonstrated to the reasonable satisfaction of Agent that the Restoration can be completed no later than three (3) months prior to the then current Maturity Date;
(I)Borrowers shall have demonstrated to the reasonable satisfaction of Agent that sufficient funds are available to Borrower through projected revenue as determined by Agent in good faith, rent and/or business interruption insurance maintained pursuant to Section 5.11, cash, and/or a letter of credit or other similar cash-equivalent security reasonably satisfactory to Agent as to form, content and issuer, and which shall be for the benefit of Agent, to pay all debt service with respect to the Loan and all operating expenses with respect to the Mortgaged Property during the period reasonably estimated by Borrower as necessary for the completion of the Restoration;
(J)prior to the making of any disbursement hereunder, Guarantor (or another guarantor acceptable to Agent in its sole discretion) shall have executed and delivered to Agent a completion guaranty in form and substance reasonably acceptable to Agent, which shall guaranty the Lien free completion of the Restoration; and
(K)with respect to the Hotel Property, (i) if the applicable Casualty occurs after the achievement of Final Completion of the Phase Zero Renovation Project and Final Completion of the PIP Project, to the extent the Net Insurance Proceeds are insufficient to pay the costs of the Restoration (as estimated by the Independent Architect and approved by Agent in its reasonable discretion) prior to the initial disbursement of Net Insurance Proceeds, Borrowers shall have provided Agent with a letter of credit, cash deposit or similar equivalent security in the amount of such deficiency in form, content and issuer reasonably satisfactory to Agent and/or (ii) if the applicable Casualty occurs prior to the achievement of Final Completion of the Phase Zero Renovation Project and Final Completion of the PIP Project, Agent is reasonably satisfied that (w) the Net Proceeds, plus (x) any Phase Zero Renovation Advances and/or PIP Advances available under this Agreement, plus (y) funds on deposit in the Renovation/PIP Costs Rebalancing Reserve Sub-Account, Key Money Reserve Sub-Account, Net Cash Flow Reserve Sub-Account and/or Future Equity Contributions are sufficient to cause Final Completion of the Phase Zero Renovation Project and/or PIP Project, as applicable, and pay all Renovation/PIP Costs to be incurred in connection therewith.
provided, if Agent does not elect to hold the Net Insurance Proceeds (in which case such Net Insurance Proceeds shall be held by Borrower), Borrowers shall not disburse any Net Insurance Proceeds other than in accordance with the conditions of this Section 5.12(d) and Sections 5.12(e) and 5.12(f).
(e)If one or more of the Release Conditions (Casualty) are not satisfied, all Net Insurance Proceeds shall be applied in accordance with Section 5.14 or if the Net Insurance Proceeds are in excess of the outstanding principal amount of the Loan, Borrowers may elect not to complete the Restoration so long as the Net Insurance Proceeds are utilized by Borrowers to repay the Loan in full.
(f)All reasonable out-of-pocket costs and expenses incurred by Agent in connection with making the Net Insurance Proceeds available for the Restoration (including reasonable attorneys’ fees and disbursements and reasonable fees and actual out-of-pocket
128
49289660

expenses of Agent’s construction consultants and inspectors) shall be paid by Borrowers. Any Net Insurance Proceeds remaining after the Restoration and the payment in full of all costs incurred in connection with the Restoration, at Borrowers’ option, either will be distributed by Agent to Borrowers or applied in accordance with Section 2.6.
(g)Business interruption/rent loss insurance proceeds, if any, shall be deposited into either (i) an account or subaccount of Agent or (ii) an account at a bank or other financial institution reasonably approved by Agent. Provided no monetary Default, material non-monetary Default (of which notice has been given by Agent) or Event of Default shall have occurred and be continuing, such proceeds shall be applied to the payment of Interest, and other sums that become due and payable under the Loan Documents as and when due and then to operating expenses for the Mortgaged Property that are set forth in the Approved Annual Budget as the same become due and payable. Borrower hereby grants to Agent, for its benefit and for the ratable benefit of Lenders, a security interest in all rights of Borrowers in and to such account and all sums on deposit therein as additional security for the Obligations. Upon the occurrence and during the continuation of an Event of Default or if Agent is applying the Net Insurance Proceeds or Net Restoration Award in accordance with Section 5.14, Agent shall have the rights and remedies with respect to such account specified in this Agreement and in any other Loan Document including the right to apply such proceeds to the Obligations. If held by Agent, the credit balance in such account or subaccount may be commingled with the general funds of Agent. If not held by Agent, Borrower shall cause the bank or financial institution at which such account is held to execute and deliver to Agent an account control agreement (in form and substance reasonably satisfactory to Agent) with respect to such account, Borrower shall pay all fees and costs with respect thereto and Borrowers shall not close such account without obtaining the prior consent of Agent. Neither Agent nor Lenders shall be liable for any loss of interest on or any penalty or charge assessed against the funds in, payable on, or credited to such account as a result of the exercise by Agent of any of its rights, remedies or obligations hereunder or under any other Loan Document. Any interest earned on the balance of such account shall be deposited into such account and be applied with the balance of such account in accordance with this Section 5.12(g). Agent shall have sole control over such account. Any business interruption/rent loss insurance proceeds remaining after completion of the Restoration shall be deposited in the Cash Management Account for distribution in accordance with Section 4.4.
(h)Notwithstanding anything to the contrary contained in this Section 5.12, so long as the Hotel Management Agreement is in full force and effect, in the event of any conflict between the provisions of this Section 5.12 and the provisions of the Hotel Management Agreement with respect to the holding, disbursement and/or use of Proceeds relating to the Hotel Property, the provisions of the Hotel Management Agreement shall govern and control.
13.Taking of the Mortgaged Property.
(a)In case of a Taking of any portion of the Mortgaged Property or the commencement of any proceedings or negotiations which might result in a Taking, Borrowers promptly will give notice thereof to Agent. Such notice shall generally describe the nature and extent of such Taking or the nature of such proceedings and the nature and extent of the Taking which might result therefrom. Agent shall be entitled hereunder to all awards or compensation payable on account of a Taking (“Awards”), which Awards shall be applied to Restoration in accordance with the provisions of this Section 5.13. Borrowers hereby irrevocably assign, transfer and set over to Agent all rights of Borrowers to any Awards and irrevocably authorizes and empowers Agent, in the name of Borrowers or otherwise, to collect and receipt for any such Awards and delegates to Agent the right to file and prosecute any and all claims for any such Awards and to participate in any and all hearings, trials and appeals in connection with a Taking that is reasonably likely to result in Net Restoration Award in excess of than (x) with respect to the Hotel Property, $2,766,000 and (y) with respect to the Garage Property, $922,000
129
49289660

(“Condemnation Proceeds Disbursement Threshold”) on behalf of Borrowers. Agent may participate in such proceedings or negotiations and Borrowers will deliver or cause to be delivered to Agent all instruments requested by Agent to permit such participation; provided, however, that Agent shall be under no obligation to question the amount of the Awards. Although it is hereby expressly agreed that the same shall not be necessary, Borrowers shall, upon demand of Agent, make, execute and deliver any and all assignments and other instruments sufficient for the purpose of assigning any Awards to Agent, free and clear of any encumbrances of any kind or nature whatsoever. Agent may be represented by counsel satisfactory to it at the expense of Borrowers. Borrowers will pay promptly after demand all costs and expenses (including reasonable attorneys’ fees and disbursements and any appraiser or other consultant) incurred by Agent in connection with any Taking and seeking and obtaining any Awards on account thereof.
(b)At all times during the Term, Borrowers will, at its sole cost and expense, promptly commence and diligently and continuously perform to completion the Restoration, in a good and workmanlike manner, and in compliance with all Legal Requirements, Permitted Encumbrances, the Leases and otherwise with the requirements set forth in this Agreement whether or not Borrowers shall have satisfied the requirements of Section 5.12(d) in order to cause the Net Restoration Award to be made available for such Restoration and whether or not the Awards, if any, on account of such Taking shall be sufficient for the purpose.
(c)In the case of any Condemnation with respect to which the Award is equal to or greater than the Condemnation Proceeds Disbursement Threshold, the Net Restoration Awards shall be held by Agent and be made available to the Borrowers for Restoration upon the determination of Agent, in its sole discretion, that the Release Conditions (Condemnation) are satisfied (and to the extent Agent makes a determination that such Release Conditions (Condemnation) have been satisfied, the procedure in clause (i) shall apply):
(i)The Net Restoration Awards shall be applied to pay the cost of Restoration, such application to be effected in the same manner as provided in Section 5.12(d) with respect to Net Restoration Awards and the balance, if any, of such Net Restoration Awards shall, at the option of Agent, be applied as set forth in Section 2.6 or be paid over or assigned to Borrower following completion of the Restoration.
(ii)Intentionally left blank;
(iii)The release of any Net Restoration Awards shall be subject to the satisfaction (or waiver by Agent) of each of the following conditions (each a “Release Condition (Condemnation)” and collectively, the “Release Conditions (Condemnation)”):
(A)less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land;
(B)[Intentionally omitted];
(C)the Loan to Value Ratio after giving effect to the Restoration, shall be equal to or less than 50.0%;
(D)no Default or Event of Default shall have occurred and be continuing;
130
49289660

(E)Borrowers shall have delivered to Agent within sixty (60) days after the occurrence of the Condemnation, a notice of Borrowers’ desire to undertake the Restoration;
(F)Borrower shall have demonstrated to the reasonable satisfaction of Agent that the Restoration will be completed in accordance with any requirements under the Operations Agreements, Permitted Encumbrances, Hotel Management Agreement, Garage Management Agreement (if and to the extent applicable), and such agreements shall remain in effect after any such Restoration;
(G)Borrowers shall have demonstrated to the reasonable satisfaction of Agent that the Restoration can be completed no later than three (3) months prior to the then current Maturity Date;
(H)Borrowers shall have demonstrated to the reasonable satisfaction of Agent that sufficient funds are available to Borrower through projected revenue as determined by Agent in good faith, rent and/or business interruption insurance maintained pursuant to Section 5.11, cash, and/or a letter of credit or other similar cash-equivalent security reasonably satisfactory to Agent as to form, content and issuer, and which shall be for the benefit of Agent, to pay all debt service with respect to the Loan and all operating expenses with respect to the Mortgaged Property during the period reasonably estimated by Borrower as necessary for the completion of the Restoration;
(I)prior to the making of any disbursement hereunder, Guarantor (or another guarantor acceptable to Agent in its sole discretion) shall have executed and delivered to Agent a completion guaranty in form and substance reasonably acceptable to Agent, which shall guaranty the Lien free completion of the Restoration; and
(J)to the extent the Net Restoration Awards are insufficient to pay the costs of the Restoration (as estimated by the Independent Architect and approved by Agent in its reasonable discretion) prior to the initial disbursement of Net Restoration Awards, Borrowers shall have provided Agent with a letter of credit, cash deposit or similar equivalent security in the amount of such deficiency in form, content and issuer reasonably satisfactory to Agent.
(iv)In the case of a Taking for temporary use, any Net Restoration Awards shall be held by Agent and applied in the same manner as business interruption insurance proceeds in accordance with Section 5.12(g) during the term of the Taking and after such application as a prepayment of the principal amount of the Loan.
(d)Notwithstanding anything to the contrary contained in this Section 5.13, in the event of any conflict between the provisions of this Section 5.13 and the provisions of the Hotel Management Agreement with respect to the holding, disbursement and/or use of Awards with respect to the Hotel, the provisions of the Hotel Management Agreement shall govern and control.
14.Application of Proceeds of Casualty or Taking to Loan; Loan Repayment. Subject to Section 5.12(h), upon a Casualty, if the disposition of the Net Insurance Proceeds is governed by Section 5.12(e) or subject to Section 5.13(d), upon a Taking, if the disposition of the Net Restoration Awards is governed by Section 5.13(c)(ii), at the option of Agent, the Loan, upon one hundred twenty (120) days’ prior notice, shall be immediately due and payable,
131
49289660

together with the Prepayment Fee and all other amounts due and payable in connection with a mandatory prepayment of the Loan under Section 2.4 hereof; provided, however, that if an Event of Default is not continuing, then no Prepayment Fee shall be payable. Regardless of whether Agent shall so elect to accelerate the maturity of the Loan as aforesaid, Agent shall have the option to (a) make available the Net Insurance Proceeds or the Net Restoration Awards, as the case may be, to Borrowers for Restoration in the manner provided in Section 5.12(d) or (b) apply the Net Insurance Proceeds and/or the Net Restoration Awards towards the payment of the Obligations, in such order and manner as Agent determines, as the case may be.
15.Costs and Expenses.
(a)Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers shall pay within five (5) days after demand by Agent, to or for the account of Agent, as the case may be, Agent’s Counsel Fees and all other out-of-pocket costs and expenses incurred by or on behalf of Agent in connection with the closing of the Loan, any prepayments of the Loan, Agent’s responses to requests for consents and waivers under the Loan Documents, any Modification or restructuring of the Loan or the Loan Documents (regardless if such Modification or restructuring closes), the enforcement of Agent’s rights and remedies under the Loan Documents or otherwise at law or equity, or with respect to any and all other aspects of the transactions contemplated herein or in any other Loan Document, including the following, whether currently outstanding or which may arise at any time during the term of the Loan:
(i)all taxes and recording expenses, including all filing fees and mortgage recording taxes, with respect to the Security Documents, and any other documents modifying, extending or consolidating the Security Documents;
(ii)in the event the Mortgaged Property, or any part thereof, shall be advertised for foreclosure sale and not sold, all costs in connection therewith, including reasonable attorneys’ fees and disbursements, advertising costs and trustees’ commissions;
(iii)all fees of any construction consultant retained by Agent as otherwise contemplated under this Agreement and other construction monitoring expenses;
(iv)all title insurance charges and premiums;
(v)all survey, investigation, insurance and, subject to the provisions hereof, appraisal, fees and expenses and all costs of preparing environmental, engineering and insurance reports concerning the Mortgaged Property; and
(vi)the reasonable and customary cost of operating and maintaining the Collateral Accounts.
(b)Borrowers agree to pay on demand or reimburse on demand to the applicable party all reasonable out-of-pocket costs and expenses of Lenders (including the reasonable fees and expenses of legal counsel) in connection with (i) any prepayments of the Loan, any Modification or restructuring of the Loan or the Loan Documents (regardless if such Modification, amendment or restructuring closes) and (ii) the enforcement of Lender’s rights and remedies under the Loan Documents or otherwise at law on equity.
16.Transfers.
132
49289660

(a)Except as expressly permitted in this Section 5.16, no Transfer (including any pledge of the direct or indirect interests in any Borrower) other than a Permitted Encumbrance or a Permitted Equity Transfer shall be made without Agent’s prior consent; provided, however, that a Transfer under clause (a)(i) of the definition thereof of a material portion of the Collateral or under clause (b) of the definition thereof, shall require the consent of all Lenders. Nothing herein shall restrict Borrowers or any owner of Borrowers from entering into a purchase and sale agreement for the Property (or direct or indirect equity interests in any entity owning the Property) so long as (i) such purchase and sale agreement does not obligate Borrowers to perform any work or other obligations other than delivery of title to the Property (or such ownership interests), and (ii) the purchase price set forth in such purchase and sale agreement will result in net sales proceeds in an amount sufficient to repay the Loan in full.
(b)If certain fixtures or other personal property located at or on the Mortgaged Property are required, in accordance with the applicable Plans and Specifications, to be removed or replaced in connection with the Phase Zero Renovation Project and/or PIP Project, upon the purchase and receipt of the applicable fixtures or personal property, Borrower may sell or otherwise dispose of the fixtures or other personal property being replaced, free from the Lien of the Security Documents; provided, however, any proceeds from the sale thereof shall be promptly deposited into the Clearing Account. In addition, Borrowers may, without the prior consent of Agent, in the Ordinary Course of Business in compliance with the operating standards set forth in Section 5.2, sell or otherwise dispose of, free from the Lien of the Security Documents, any fixtures or other personal property located at or on the Mortgaged Property (except all or any portion of the buildings or other permanent structures built upon the Land) to the extent such property is being replaced, has become old, inadequate, obsolete, worn out or unfit or unadapted for use in the operation of the Mortgaged Property, cannot be advantageously used in the efficient operation of the Mortgaged Property or the removal and/or replacement of which would result in a cost savings, provided, that, in the case of each such sale or other disposition of any such fixtures or personal property (other than in connection with the sale or other disposition of such property which is contained in, or is part of, the existing Improvements as of the date hereof so long as such property is not intended or required to be used for or in connection with the development of the Project), Borrowers shall (unless the failure to do so would not reduce the value of the Mortgaged Property by more than a de minimis extent) substitute such property with other property acquired by Borrowers free and clear of all liens, encumbrances and rights of others except Permitted Encumbrances, of a value and utility substantially equal to the property sold or otherwise disposed of when new and such substitute property is subject to a first, perfected security interest in favor of Agent.
(c)So long as no Default or Event of Default has occurred and is continuing, Borrowers may, without the prior consent of Agent or any Lender, (i) make immaterial Transfers of portions of the Mortgaged Property to Governmental Authorities for dedication or public use, and (ii) grant easements, restrictions, covenants, reservations and rights-of-way in the Ordinary Course of Business for access, water and sewer lines, telephone or other fiber optic or other data transmission lines, electric lines or other utilities or for other similar purposes, provided that no such Transfer, conveyance or encumbrance set forth in the foregoing clauses (i) or (ii) shall (x) materially impair the utility and operation of the Mortgaged Property, (y) materially impair the ability to sell the Mortgaged Property or lease any portion of the Mortgaged Property (other than the portion to be transferred) or (z) reasonably be expected to, or does, have a Material Adverse Effect. In connection with any Transfer permitted pursuant to this subsection (c), Agent shall execute and deliver any instrument reasonably necessary or appropriate, in the case of the Transfers referred to in clause (i) above, to release the portion of the Mortgaged Property affected by such Taking or such Transfer from the Lien of the Mortgage or, in the case of clause (ii) above, to subordinate the Lien of the Mortgage to such easements, restrictions, covenants, reservations and rights-of-way or other similar grants upon receipt by Agent of:
133
49289660

(i)fifteen (15) days’ prior written notice thereof;
(ii)a copy of the instrument or instruments of Transfer;
(iii)a certificate in form and substance reasonably satisfactory to Agent stating (A) with respect to any Transfer, the consideration, if any, being paid for the Transfer, which consideration shall be applied to the Outstanding Principal Balance in accordance with Section 5.14 and (B) that such Transfer does not have a Material Adverse Effect; and
(iv)reimbursement of all of Agent’s reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and disbursements) incurred in connection with such Transfer.
(d)Without limiting Section 5.16(a), Borrowers shall not assign, sell, pledge, encumber, transfer, hypothecate or otherwise dispose of its interest or rights in the Loan, the Loan Documents or the Collateral, or attempt to do any of the foregoing or suffer any of the foregoing, if such action would cause the Loan, or the exercise of any of Agent’s or Lenders’ rights in connection therewith, to constitute a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code (unless Borrowers furnish to Agent a legal opinion reasonably satisfactory to Agent that the transaction is exempt from such prohibited transaction provisions of ERISA and the Code). Assuming that no portion of the assets held by Agent or any Lender in connection with the transactions contemplated under the Loan Documents constitute Plan Assets, Borrowers agree to indemnify and hold Agent and Lenders free and harmless from and against all losses, costs (including reasonable attorneys’ fees and expenses), taxes, damages (excluding consequential, special, punitive or exemplary damages, except to the extent asserted against Agent or any Lender by any third party or paid by Agent or any Lender by any third party) and expenses Agent or any Lender may suffer by reason of the reasonable investigation, defense and settlement of claims and in obtaining any prohibited transaction exemption under ERISA necessary or desirable in Agent’s reasonable judgment or by reason of a breach of the foregoing prohibitions.
(e)In clarification of this Section 5.16, the Loan, and Borrowers’ rights with respect thereto, are not 「assumable」.
(f)Notwithstanding anything to the contrary contained in this Section 5.16, no Transfer shall be permitted unless such Transfer is made in compliance with the Hotel Management Agreement, the Permitted Encumbrances and Operations Agreements.
17.Defense of Title. Borrowers will do all things necessary or proper to defend title to the Mortgaged Property and the other Collateral, subject to the Permitted Encumbrances, but Agent shall have the right, at any time, to intervene in any suit affecting such title and to employ independent counsel in connection with any such suit to which it may be a party by intervention or otherwise; and upon demand, Borrowers agree to pay Agent all reasonable out-of-pocket expenses paid or incurred by Agent in respect of any such suit affecting title to any such property or affecting Agent’s Lien or rights hereunder, including Agent’s Counsel Fees. Borrowers will indemnify and hold harmless Agent and Lenders from and against any and all costs and expenses, including any and all cost, loss, damage (excluding consequential, special, punitive or exemplary damages, except to the extent asserted against Agent or any Lender by any third party or paid by Agent or any Lender by any third party) or liability which Agent or any Lender may suffer or incur by reason of the failure of the title to all or any part of the Mortgaged Property or security interest in the Collateral or by reason of the failure or liability of Borrowers, for any reason, to convey or grant a security interest in the rights, titles and interests which the Mortgage or other Security Document purports to mortgage, assign, pledge or grant a security interest in,
134
49289660

and all amounts at any time so payable by Borrowers shall be secured by the Security Documents.
18.Recordation and Certain Taxes. Borrowers, at their sole cost and expense, shall at all times cause the Security Documents to be recorded, registered or filed in the public records, and any amendments or supplements hereto and thereto, and, if requested by Agent, any instruments of assignment hereof or thereof, to be recorded, registered and filed, as applicable, and to be kept recorded, registered and filed, in such manner and in such places, shall pay all recording, registration and filing fees and taxes and other charges, including any recording or intangible personal property tax or similar imposition of the State of California or any authority thereof, with respect thereto, and shall comply with all Legal Requirements in order fully and effectively to establish, preserve, perfect and protect the Lien of the Security Documents subject only to Permitted Encumbrances. Borrowers hereby authorize Agent to file financing and continuation statements with respect to the Collateral. Borrowers shall timely file (taking into account any effective extensions for filing) all federal, state and local tax returns and all other material tax returns, domestic and foreign, required to be filed by it and shall pay prior to being delinquent all Taxes (excluding Property Taxes), charges and assessments payable by it that become due, except for those being contested in good faith. Each Borrower shall maintain its status as an entity disregarded from its owner as defined in Treasury Regulation Section 301.7701-3(b)(1)(ii).
19.Name, Fiscal Year and Accounting Method. If any Borrower changes its Fiscal Year, its method of accounting or its name, in each case, Borrowers will provide Agent at least thirty (30) days prior written notice. If any Guarantor changes its name, Borrowers will provide Agent with prompt notice thereof.
20.Consolidation, Merger, Conveyance, Transfer or Lease. Without the prior consent of Agent, no Borrower shall consolidate with, merge into or divide (whether pursuant to Section 18-217 of the Act or otherwise) into any other one or more Persons and no Borrower shall not, except for Permitted Equity Transfers, convey, transfer or lease its properties or assets substantially as an entirety to any Person.
21.Special Purpose Bankruptcy Remote Entity. Without in any way limiting the provisions of this Article V, each Borrower shall at all times be a Special Purpose Bankruptcy Remote Entity. No Borrower shall, directly or indirectly, make any change, amendment or modification to its organizational documents, or otherwise take any action which could result in such Borrower not being a Special Purpose Bankruptcy Remote Entity. No Borrower will own or use any assets other than its applicable Mortgaged Property and personal property incidental to the business of owning and operating its applicable Mortgaged Property and activities incidental thereto; without limiting the foregoing, each of the Hotel Property and Garage Property shall be operated as a single property or project, generating substantially all of the applicable Borrowers’ gross income, it being Borrowers’ intent that the Mortgaged Property shall at all times and from time to time constitute 「single asset real estate」 for purposes of Section 362(d)(3) of the Bankruptcy Code.
22.Changes in Zoning. From and after the Closing Date, Borrowers shall not request or seek to obtain any change to, or consent to any request for or change in, any Legal Requirement, restrictive covenant or other restriction applicable to the Mortgaged Property or any portion thereof or any other law, ordinance, rule, regulation, restrictive covenant or restriction affecting the zoning, development or use of the Mortgaged Property or any portion thereof (that would change or limit the uses permitted of such portion), or any variance or special exception therefrom, that could result in the use of the Mortgaged Property becoming a non-conforming use under any zoning ordinance or any other applicable land use law, rule or regulation, without the prior consent of Agent. Hotel Fee Borrower and Operating Lessee
135
49289660

Borrower shall not partition the Hotel Property and Garage Fee Borrower shall not partition the Garage Property.
23.Limitation on Indebtedness. Borrowers shall not incur, create, contract for, waive, assume, have outstanding, guarantee or otherwise become liable with respect to Indebtedness other than Permitted Indebtedness. Without limiting the actions required in this Agreement, Borrowers shall not guarantee any obligation of any Person that is not a Borrower.
24.Distributions and Dividends.
(a)During any Cash Sweep Period, and except pursuant to any agreements with Affiliates entered into by Borrowers in accordance with the terms of this Agreement, Borrowers shall not make (directly or indirectly) any payments, dividends or distributions to any other Credit Party or to any direct or indirect owner of any interests in any Borrower or any other Credit Party or to any Affiliate of any Borrower or any other Credit Party or any such owner, including any payments on account of any Indebtedness, investment or any services rendered or goods supplied other than as permitted under Section 4.4 hereof.
(b)No Borrower Party shall distribute any money or other property to any member, partner or other direct or indirect owner of such Borrower Party, whether in the form of earnings, income or other proceeds from the Property, nor shall any Borrower Party repay any principal or interest on any loan or other advance made to such Borrower Party by any member, partner or other direct or indirect owner of such Borrower Party nor shall Borrower loan or advance any funds to any such member, partner or other direct or indirect owner of any Borrower Party, in each case, in a manner that could cause the Loan to be classified as a HVCRE, and each Borrower Party shall at all times maintain sufficient equity in the Property to ensure that the Loan is not categorized as HVCRE.
25.Organizational Documents. No Borrower shall amend, terminate or cancel (or suffer the amendment, termination or cancellation of) any of its Organizational Documents, without, in each case, the prior consent of Agent, not to be unreasonably withheld, conditioned or delayed. Borrowers shall cause each Credit Party not to amend, terminate or cancel (or suffer the amendment, termination or cancellation of) any of their respective Organizational Documents, without, in each case, the prior consent of Agent; provided, however, Agent’s consent shall not be required with respect to any amendment of any Organizational Document of Guarantor so long as such amendment is not being entered into in connection with any Transfer which is not a Permitted Equity Transfer.
26.ERISA.
(a)Borrowers shall not enter into any collective bargaining agreement or other union contract that may require contributions to any Multiemployer Plan or establish, maintain or become obligated to contribute to any Pension Plan, except to the extent such contributions do not exceed $1,000,000 per annum. Borrowers shall not permit any of its assets to become Plan Assets.
(b)At any time any Borrower has any investor that is subject to Title I of ERISA or Section 4975 of the Code, Borrowers shall deliver to Agent at least ninety (90) days following the end of each 「annual valuation period」 (as defined in 29 CFR Section 2510.3-101) of such Borrower or within ninety (90) days following the end of each calendar year of such Borrower, as applicable, a certificate in form and substance reasonably satisfactory to Agent to the effect that (A) each Borrower is not an 「employee benefit plan」 as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA; (B) Borrowers are not subject to state statutes
136
49289660

applicable to it regulating investments and fiduciary obligations with respect to governmental plans; and (C) one or more of the following circumstances is true:
(i)Equity Interests in each Borrower is publicly offered securities, within the meaning of 29 CFR Section §2510.3-101(b)(2);
(ii)Less than twenty-five percent (25%) of each outstanding class of Equity Interests in each Borrower is held by 「benefit plan investors」 within the meaning of 29 CFR Section §2510.3-101(f)(2); or
(iii)Each Borrower qualifies as an 「operating company」 or a 「real estate operating company」 within the meaning of 29 CFR Section 2510.3-101(c) or (e).
27.Maintenance of Existence. Borrowers shall remain in good standing under the laws of the State of Delaware and the State of California. Each Borrower shall preserve, renew and keep in full force and effect its existence as a limited liability company organized and existing pursuant to the laws of the State of Delaware and as a foreign limited liability company pursuant to the laws of the State of California, shall take all action to maintain all rights, privileges and franchises necessary or desirable for the conduct of its business, and shall comply with all Legal Requirements with respect thereto.
28.Subsidiaries and Joint Ventures. No Borrower shall acquire any stock or assets of, or form a partnership, joint venture or other similar arrangement with, or make any investment in, any Person without Agent’s prior consent.
29.Loans to Partners and Employees. No Borrower shall make any loan or advance to any other Credit Party or to any employee or Affiliate of any Borrower or any other Credit Party. For the avoidance of doubt, loans by one member of any Borrower or its indirect owners to another member or its indirect owners for the purpose of making up a capital contribution shortfall shall be permitted.
30.Transactions with Affiliates. Except for the Garage Management Agreement, the Operating Lease, the Parking Agreement and transactions among Borrowers, Borrowers shall not enter into, or be a party to, any transaction with any other Credit Party or any Affiliates of any Borrower or any other Credit Party without Agent’s express prior written approval (if such transaction is upon fair and reasonable terms which are fully disclosed to Agent and are substantially similar to those that would obtain in a comparable arm’s length transaction with a Person not its Affiliate, such approval not to be unreasonably withheld or delayed).
31.Adverse Contracts. Borrowers shall not enter into any contract or agreement which is reasonably likely to cause a Material Adverse Effect; provided that the foregoing shall not limit Borrowers’ right to take any other action permitted hereunder.
32.Utilities. Borrowers shall pay, or cause to be paid, all charges for all utility services at any time due and payable to, or the payment of which is the obligation of, Borrowers, and will do all other things required for the maintenance and continuance of utility services necessary for the operation, use and occupancy of the Improvements for their intended purposes in accordance with this Agreement, and ensure that they are available at the boundaries of the Mortgaged Property.
33.Margin Stock. Borrowers shall not use any of the proceeds of the Loan for the purpose of purchasing or carrying 「margin stock」 within the meaning of Regulation T, U or X issued by the Board of Governors of the Federal Reserve System, as at any time amended, and
137
49289660

Borrower agrees to execute all instruments necessary to comply with all the requirements of Regulation U of the Federal Reserve System, as at any time amended.
34.Patriot Act and U.S. Bank Secrecy Act Compliance.
(a)Borrowers will comply with the Patriot Act, Anti-Money Laundering Laws, the U.S. Bank Secrecy Act and all applicable requirements of Governmental Authorities having jurisdiction over Borrowers and/or the Property, including those relating to money laundering and terrorism and shall put into place all policies, practices and procedures as required by Legal Requirements to insure that each Credit Party and each of their direct or indirect owners are in compliance with the representations, warranties and covenants set forth in this Section 5.34. Agent shall have the right to audit Borrowers’ compliance with the Patriot Act, the U.S. Bank Secrecy Act and all applicable requirements of Governmental Authorities having jurisdiction over Borrowers and/or the Property, including those relating to money laundering and terrorism. In the event that any Borrower fails to comply with the Patriot Act, Anti-Money Laundering Laws, the U.S. Bank Secrecy Act and/or any other applicable requirements of Governmental Authorities, then Agent may, at its option, cause Borrowers to comply therewith and any and all costs and expenses incurred by Agent and any Lender in connection therewith shall be secured by the Mortgage and the other Loan Documents and shall be immediately due and payable.
(b)Neither any Credit Party nor, with respect to any direct or indirect owners of publicly traded shares of CMCT or any other publicly traded company, to Borrowers’ knowledge, any direct or indirect owner of any Credit Party (i) is or will be a Person listed on any Government Lists, (ii) is or will be a Person listed in the annex to, or otherwise to be subject to the prohibitions of, Presidential Executive Order No. 13224 (Sept. 23, 2001) (“Executive Order 13224”), or subject to any other similar prohibitions contained in the rules and regulations of OFAC or in any enabling legislation or other executive orders in respect thereof, (iii) except with respect to any direct or indirect owners of publicly traded shares of CMCT or any other publicly traded company acquired through a nationally recognized exchange, is a Person that has been previously or will be indicted for or convicted of any felony involving a crime or crimes of moral turpitude (provided that the foregoing statement in this clause (iii) with respect to crimes of moral turpitude shall be qualified to Borrowers’ knowledge in each case solely with respect to the indirect owners of Borrowers that (x) are not Guarantor or any Affiliate of Borrowers or Guarantor, (y) do not own any direct or indirect interest in any Borrower or any Person that Controls any Borrower in an amount which equals or exceeds 10%, and (z) do not Control Borrower) or for any Patriot Act Offense, or (iv) except with respect to any direct or indirect owners of publicly traded shares of CMCT or any other publicly traded company acquired through a nationally recognized exchange, is a Person that is currently or will be under investigation by any Governmental Authority for any Patriot Act Offense or other alleged criminal activity (provided that the foregoing statement in this clause (iv) with respect to alleged criminal activity shall be qualified to Borrowers’ knowledge in each case solely with respect to the indirect owners of Borrowers that (x) are not Guarantor or any Affiliate of Borrowers or Guarantor, (y) do not own any direct or indirect interest in any Borrower or any Person that Controls any Borrower in an amount which equals or exceeds 10%, and (z) do not Control Borrower) (any Person described in any of the foregoing clauses (i)-(iv) a “Proscribed Person”). For purposes hereof, the term “Patriot Act Offense” means any violation of the criminal laws of the United States of America or of any of the several states, or that would be a criminal violation if committed within the jurisdiction of the United States of America or any of the several states, relating to terrorism or the laundering of monetary instruments, including any offense under any Anti-Money Laundering Laws. “Patriot Act Offense” also includes the crimes of conspiracy to commit, or aiding and abetting another to commit, a Patriot Act Offense. For purposes hereof, the term “Government Lists” means (1) the Specially Designated Nationals and Blocked Persons Lists and any replacement or other lists maintained by the Office of Foreign Assets Control or
138
49289660

by any successor thereto (“OFAC”), (2) any other list of terrorists, terrorist organizations or narcotics traffickers maintained pursuant to any of the Rules and Regulations of OFAC, and (3) any similar lists maintained by the United States Department of State, the United States Department of Commerce or any other Governmental Authority or pursuant to any Executive Order of the President of the United States of America.
(c)At all times throughout the Term, including after giving effect to any Transfers permitted pursuant to the Loan Documents, (a) none of the funds or other assets of any Credit Party or any direct or indirect owner of any Credit Party, provided, with respect to any direct or indirect owners of publicly traded shares of CMCT or any other publicly traded company, to Borrowers’ knowledge, shall constitute property of, or shall be beneficially owned, directly or indirectly, by any Person subject to trade restrictions under United States law, including, but not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., as amended, The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended), the Patriot Act, Executive Order 13224, and any legislation, executive orders and rules and regulations, enabling or promulgated under any of the foregoing (each, an “Embargoed Person”), with the result that the investment in any Credit Party, as applicable (whether directly or indirectly), would be prohibited by law, or the Loan made by Lenders would be in violation of law, (ii) no Embargoed Person or other Prohibited Person shall, or with respect to any direct or indirect owners of publicly traded shares of CMCT, to Borrowers’ knowledge, have any interest of any nature whatsoever in any Credit Party, as applicable, with the result that the investment in any Credit Party, as applicable (whether directly or indirectly), would be prohibited by law or the Loan would be in violation of law, and (iii) none of the funds of any Credit Party, as applicable, shall be derived from any unlawful activity with the result that the investment in any Credit Party, as applicable (whether directly or indirectly), would be prohibited by law or the Loan would be in violation of law.
(d)Borrowers shall provide Agent with any information that Agent deems necessary from time to time and on Agent’s request in order to ensure compliance with this Section 5.34 and the other provisions of this Agreement relating to the Patriot Act, the U.S. Bank Secrecy Act and any other Legal Requirements concerning money laundering and similar activities.
35.Anti-Corruption Obligations. Each Borrower represents and warrants that, in connection with this Agreement, Borrowers and, to such Borrower’s knowledge, each Person that has an economic interest in any Borrower, has complied with and will continue to comply with all applicable anti-bribery and corruption laws and regulations, including the U.S. Foreign Corrupt Practices Act of 1977 and the U.K. Bribery Act 2010 (the “Anti-Corruption Obligation”). Borrowers shall, at all times throughout the Term, maintain and enforce appropriate policies, procedures and controls to ensure compliance with the Anti-Corruption Obligation.
36.General Contractor Agreement.
(a)Borrower shall (i) use commercially reasonable efforts to cause the General Contractor to manage the Phase Zero Renovation Project and/or the PIP Project and perform its duties under and in accordance with the General Contractor’s Agreement, (ii) diligently perform and observe in all material respects all of the terms, covenants and conditions of the General Contractor’s Agreement on the part of Borrower to be performed, (iii) promptly notify Agent of any material default under the General Contractor’s Agreement of which it is aware, (iv) use commercially reasonable efforts to promptly enforce the performance and observance of all of the covenants required to be performed and observed by the General Contractor under the General Contractor’s Agreement, (v) use commercially reasonable efforts
139
49289660

to cause General Contractor to ensure that the work to be performed by each Contractor under each Construction Contract is the work called for by the applicable Plans and Specifications (other than de minimis changes to reflect site conditions) and (vi) ensure that all work on the Improvements shall be completed in substantial accordance with the applicable Plans and Specifications in a good and workmanlike manner and shall be free of any defects. Borrower shall, upon request by Agent, cause General Contractor to provide Agent and Construction Consultant with reports in regard to the status of construction of the Improvements, in such form and detail and in such intervals as may be reasonably requested by Agent; provided that, so long as no Event of Default shall have occurred and be continuing, in no event more than once per month. If Borrower shall default (beyond applicable notice and cure periods) in the performance or observance of any material term, covenant or condition of the General Contractor’s Agreement on the part of Borrower to be performed or observed, then, without limiting Agent’s other rights or remedies under this Agreement or the other Loan Documents or under the General Contractor’s Agreement, then during the continuance of such Event of Default, Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the material terms, covenants and conditions of the General Contractor’s Agreement on the part of Borrower to be performed or observed.
(b)Prohibition Against Termination or Modification of General Contractor’s Agreement. Borrower shall not (i) surrender, terminate, cancel, modify, renew or extend the General Contractor’s Agreement, (ii) enter into any other agreement relating to the development or construction of the Improvements with the General Contractor or any other Person, (iii) consent to the assignment by the General Contractor of its interest under the General Contractor’s Agreement, or (iv) waive or release any of its rights and remedies under the General Contractor’s Agreement, in each case, without the express written consent of Agent, which consent shall not be unreasonably withheld.
37.Architect’s Contract. (i) The Architect’s Contract shall not be amended or terminated without Agent’s prior written consent, which consent shall not be unreasonably withheld; (ii) Borrower shall comply in all material respects with its obligations under the Architect’s Contract; (iii) the work to be performed by Borrower’s Architect under the Architect’s Contract shall be the architectural services required to design the applicable portion of the applicable Project; (iv) Borrower shall enforce the provisions of the Architect’s Contract in the best interests of the applicable Project using sound business judgment, (v) Borrower shall not waive any of the material obligations of Borrower’s Architect under the Architect’s Contract, (vi) Borrower shall not do any act which would relieve Borrower’s Architect from its material obligations under the Architect’s Contract; and/or (vii) Borrower shall not enter into an any amendments to the Architect’s Contract (or enter into any new or replacement architect’s contract) without the prior written approval of Agent, which approval shall not be unreasonably withheld. Upon request by Agent, Borrower shall (subject to the terms of the Architect’s Contract) use commercially reasonable efforts to cause Borrower’s Architect to provide Agent with reports in regard to the status of construction of the Phase Zero Renovation Project and/or PIP Project, as applicable, in such form and detail as reasonably requested by Agent.
38.Replacement of General Contractor, Borrower’s Architect. Without limiting any other rights of Agent and Lender under the Loan Documents, at Agent’s election, Borrower shall remove and replace the General Contractor and Borrower’s Architect with a Person or Persons approved by Agent acting in its sole but (other than in the case of clause (i)) reasonable discretion (or if no such Person or Persons are approved by Agent within thirty (30) days of such election, with such Person(s) chosen by Agent acting in its sole discretion) in accordance with and upon the occurrence of any one or more of the following events: (i) any or all of such parties, at any time following the occurrence and during the continuance of an Event of Default, (ii) any such party if such party has engaged in gross negligence, fraud, willful misconduct or misappropriation of funds, (iii) if such party shall be in material default beyond all applicable
140
49289660

notice and cure periods under the General Contractor’s Agreement or Architect’s Contract, as applicable, or (iv) if such party becomes insolvent or a debtor in any bankruptcy or insolvency proceeding. If at any time Agent consents to (A) the appointment of a new general contractor, such general contractor and Borrower shall, as a condition to Agent’s consent, execute and deliver a subordination of general contractor’s agreement in form and substance reasonably acceptable to Agent and/or (B) the appointment of a new architect, such architect and Borrower shall, as a condition to Agent’s consent, execute and deliver an architect’s certificate in form and substance reasonably acceptable to Agent and/or (C) the appointment of a construction manager, such construction manager and Borrower shall, as a condition to Agent’s consent, execute and deliver a subordination of construction management agreement in form and substance reasonably acceptable to Agent.
39.Hotel Covenants.
(a)Borrowers shall cause the hotel located on the Property to be operated pursuant to the Hotel Management Agreement.
(b)Borrowers shall (i) promptly perform and/or observe in all material respects all of the covenants and agreements required to be performed and observed by it under the Hotel Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (ii) promptly notify Agent of any default under the Hotel Management Agreement of which it is aware; (iii) promptly deliver to Agent a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate received by it under the Hotel Management Agreement; and (iv) use commercially reasonable efforts to promptly enforce the performance and observance of all of the covenants and agreements required to be performed and/or observed by the Hotel Manager under the Hotel Management Agreement.
(c)Borrowers shall not, without Agent’s prior written consent, which consent shall not be unreasonably withheld, (i) surrender, terminate or cancel the Hotel Management Agreement; (ii) reduce or consent to the reduction of the term of the Hotel Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Hotel Management Agreement; (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the Hotel Management Agreement; or (v) replace the Hotel Manager or enter into any Replacement Hotel Management Agreement.
(d)Without in any way limiting the covenants set forth in the Loan Documents, Borrowers shall:  (i) subject to the disruption caused by the Phase Zero Renovation Project and PIP Project, cause the hotel located on the Property to be at all times open for business and operated, repaired and maintained as a well-maintained 「first-class hotel」 which shall mean a hotel providing amenities, services and facilities substantially equivalent or superior to hotels of similar average room rate and targeted market segment from time to time operating in the same or comparable geographic area of the Property, taking into consideration the age and location of the hotel located on the Property and (ii) maintain Inventory in amounts sufficient to meet the hotel industry standard for hotels comparable to the hotel located on the Property and at levels sufficient for the operation of the hotel located on the Property at full occupancy levels.
(e)Unless Agent consents in writing, Borrowers shall not have any employees at the hotel located on the Property. Regardless of who is the employer of the employees at the hotel, Borrowers shall use commercially reasonable efforts to ensure that none of Hotel Manager, Borrowers or such employer shall terminate (or permit the termination of) any employees at the hotel without the prior written consent of Agent if such termination would trigger any liability under the WARN Act.
141
49289660

(f)Borrowers shall, or cause Hotel Manager to cause, all revenues paid by credit card companies with respect to the Property (less any processing fees which are owed such credit card companies in accordance with the terms of the applicable credit card agreements) to be deposited into the Clearing Account; provided, that such revenue paid by credit card companies with respect to the Hotel Property may be deposited into an account with Hotel Manager if required or permitted under a Hotel Management Agreement which is in full force and effect. Any new or replacement Credit Card Agreement for the Property, including the form of such Credit Card Agreement and the identity of the credit card company shall be subject to the prior written reasonable consent of Agent; provided, that (i) with respect to the Hotel Property, if a Hotel Management Agreement is in full force and effect, only to the extent Operating Lessee Borrower and/or Hotel Fee Borrower has the right to consent to a new or replacement Credit Card Agreement and (ii) with respect to the Garage Property, if the Parking Lease is in full force and effect, only to the extent Garage Fee Borrower has the right to consent to a new or replacement Credit Card Agreement.
(g)All Advance Deposits shall be held and applied in compliance with all applicable Legal Requirements. Any bond or other instrument which Borrowers are permitted to hold in lieu of cash security deposits under any applicable Legal Requirements (a) shall be maintained in full force and effect in the full amount of such deposits unless replaced by cash deposits as herein above described, (b) shall, if permitted pursuant to any Legal Requirements, name Lender as payee or mortgagee thereunder (or at Agent’s option, be fully assignable to Lender), and (c) shall in all respects comply with any applicable Legal Requirements. Borrowers shall, upon request, provide Agent with evidence reasonably satisfactory to Agent of Borrowers’ compliance with the foregoing.
40.Construction Representations and Covenants.
(a)The Phase Zero Renovation Project / PIP Project.
(i)Borrowers represent and warrant to Agent and Lenders that Borrowers have furnished Agent true and complete sets of the Phase Zero Renovation Plans and Specifications which comply with all applicable Legal Requirements (including, without limitation, all requirements of the ADA), all Governmental Approvals, and are the Plans and Specifications that are the basis for all Governmental Approvals required to construct the Phase Zero Renovation Project and the Phase Zero Renovation Plans and Specifications have been approved by any applicable Governmental Authority and Borrowers’ Architect as required for the Phase Zero Renovation Project in accordance with this Agreement, and are the same Plans and Specifications submitted to General Contractor and to all Contractors performing the Phase Zero Restoration Project work at the Property.
(ii)Borrowers represent and warrant to Agent and Lenders that appropriate Governmental Authorities have issued all Governmental Approvals required for the commencement of construction of the Phase Zero Renovation Project and, with respect to the PIP Project will issue, prior to commencement thereof, all Governmental Approvals required for the commencement of the PIP Project, in each case, through Final Completion in accordance with the applicable Plans and Specifications. All such Governmental Approvals with respect to the Phase Zero Restoration Project are final and beyond any and all appeal or contest periods. Each addition to or modification of the applicable Plans and Specifications shall be subject to approval in writing by Agent (which approval shall not be unreasonably withheld), and, to the extent required by law, by the appropriate Governmental Authorities.
142
49289660

(iii)Borrowers shall not commence any work on any stage or phase of the Phase Zero Renovation Project and/or PIP Project, as applicable unless all required Governmental Approvals have been issued or obtained from the appropriate Governmental Authorities with respect to the commencement of such stage or phase of construction. All Plans and Specifications shall become the property of Agent upon the occurrence and continuance of an Event of Default under the Loan Documents.
(iv)The Phase Zero Renovation Project and/or PIP Project, as applicable shall be constructed and equipped in compliance with the requirements of the Governmental Authorities and the appropriate Board of Fire Underwriters, if any, or other similar body, if any, acting in and for the locality in which the Property is situated. Compliance with the provisions of this Section 5.40 and any other provisions of this Agreement relating to the construction and equipping of the Phase Zero Renovation Project and/or PIP Project, as applicable, shall be determined by Agent in its reasonable discretion.
(v)During regular business hours and subject to the terms of the Hotel Management Agreement, the Construction Consultant, and its agents and employees, shall have the right of entry and free access to the Property to inspect the Phase Zero Renovation Project and/or PIP Project, as applicable, provided that Agent, the Construction Consultant, and its agents and employees shall use reasonable efforts not to unreasonably interfere with Borrowers’ construction of the Phase Zero Renovation Project and/or PIP Project, as applicable, and with the operations of the Hotel, and Borrowers may have a representative present during any such inspection.
(vi)Borrowers hereby acknowledge and agree that neither Agent, Lenders nor the Construction Consultant’s approval of the applicable Plans and Specifications (or any revisions thereto), nor its inspection of the performance of the construction, nor its right to inspect such work, shall impose upon Agent, Lenders and/or Construction Consultant any obligation or liability whatsoever with respect thereto, including, without limitation, any obligation or liability that might arise as a result of such work not being performed in accordance with Legal Requirements or with the applicable Plans and Specifications (and revisions thereto) approved by Agent, Lenders and Construction Consultant or otherwise. The review or approval by Agent, Lenders and Construction Consultant of the applicable Plans and Specifications or any revisions thereto is solely for Agent’s and Lenders’ benefit, and is without any representation or warranty whatsoever with respect to the adequacy, correctness or efficiency thereof or otherwise. Neither the granting by Agent, Lenders and/or Construction Consultant of its approval of the applicable Plans and Specifications or any revisions thereto, shall in any manner constitute or be deemed to constitute a judgment or acknowledgment by Agent or Lenders as to their legality or compliance with Legal Requirements.
41.Completion of Phase Zero Renovation Project/PIP Project. Borrowers shall diligently pursue construction and completion of the Phase Zero Renovation Project and PIP Project, all in accordance with the applicable Plans and Specifications, the applicable Construction Schedule, the Phase Zero Renovation Budget and/or PIP Budget, as applicable, and in compliance with all restrictions, covenants and easements affecting the Property, all applicable Legal Requirements, all applicable Governmental Approvals, and the terms and conditions of the Loan Documents, and free and clear of all liens, encumbrances and security instruments (other than the Permitted Encumbrances).
(a)Borrowers shall promptly pay all sums and to perform such duties as may be necessary to complete such construction of the Phase Zero Renovation Project and/or PIP Project substantially in accordance with the applicable Plans and Specifications and in
143
49289660

compliance with all restrictions, covenants and easements affecting the Property, all Legal Requirements and all applicable Governmental Approvals, and in accordance with all terms and conditions of the Loan Documents free from any Liens, claims or assessments (actual or contingent) asserted against the Property for any material, labor or other items furnished in connection therewith.
(b)Borrowers shall deliver, from time to time within ten (10) days of Borrowers' receipt of Agent's written request therefor, in a form reasonably acceptable to Agent, the following: (i) a list containing the name, address, telephone number and contact party of each Contractor previously employed, or to be employed, or to be used in connection with Final Completion of the Phase Zero Renovation Project and/or PIP Project, as applicable, which list shall include the dollar amount, inclusive of any Change Orders, if any, of each Construction Contract, and specifying the portion thereof, if any, paid through the date of such list; (ii) true, correct and complete copies of each Construction Contract and schedule of materials identified in such list, including any changes thereto; (iii) a breakdown of each cost of the projected total cost of completing the Phase Zero Renovation Project and/or PIP Project, as applicable,, specifying that portion, if any, of each cost item which has been incurred; and (iv) a detailed report specifying the progress of all construction and projected sequencing and completion time for all yet to be completed work compared to the applicable Construction Schedule, all as of the date of such request. Agent may contact General Contractor to discuss the course of construction and so long no Event of Default shall have occurred and be continuing, a representative of Borrowers must participate in any such discussion. Borrowers acknowledge and agree that Agent may disapprove any proposed new Contractor which, in Agent's good faith determination, is deemed financially or otherwise unqualified. Borrowers acknowledge that the absence of any such disapproval shall not constitute and shall not be deemed to constitute a representation or warranty of qualification by Agent.
(c)Borrowers shall not contract for any materials, furnishings, equipment, fixtures or other parts or components of the Project Improvements if any third party shall retain any ownership interest (other than Permitted Equipment Leases) in such items after their delivery to the Property. Borrowers shall have five (5) Business Days to effect the removal of any such retained interest. Notwithstanding the foregoing, Borrowers may request Agent's prior written consent to any such contract.
(d)Borrowers agree to use best efforts to obtain a permanent certificate of occupancy for the entire Property as soon as reasonably practicable and in any event within the time periods required by law.
(e)At all times during the duration of the Phase Zero Renovation Project and/or PIP Project, Borrowers shall not take more than four (4) floors in the Hotel out of the reservation system at one time to perform the work required in connection with the Phase Zero Renovation Project and/or PIP Project.
(f)If not delivered in connection with Final Completion, within forty-five (45) days following Final Completion, Borrowers shall deliver evidence reasonably acceptable to Agent that (i) all Punch List Items shall have been completed in accordance in all material respects with the Phase Zero Renovation Plans Specifications or PIP Plans and Specifications, as applicable (as the same may be amended in accordance with this Agreement), all applicable Legal Requirements, the Hotel Management Agreement and this Agreement, (ii) all Phase Zero Renovation Costs and PIP Costs, as applicable, in connection with the Phase Zero Renovation Project or PIP Project, as applicable, have been paid in full and closed out and unconditional Lien waivers in form reasonably satisfactory to Agent from all Contractors who performed any work with regard to all work performed and/or all materials supplied (in each case, in connection with the Phase Zero Renovation Project or PIP Project, as applicable) have been delivered to
144
49289660

Agent, (iii) Borrowers shall have delivered to Agent (A) copies of all operating manuals, warranties and other material documentation relating to the Phase Zero Renovation Project or PIP Project, as applicable, and any fixtures and equipment used in accordance therewith to the extent in Borrowers’ possession or control, (B) with respect to the PIP Project, to the extent of a change in the building footprint or if otherwise reasonably requested by Agent, a final 「as built」 set of drawings of the Hotel, and an 「as built」 survey of the Hotel Property and the Improvements, and (C) if required by the applicable jurisdiction to occupy all or any portion of the Hotel following completion of the Phase Zero Renovation Project or PIP Project, as applicable, a copy of a permanent certificate of occupancy (or temporary certificate of occupancy, provided any conditions contained therein are reasonably acceptable to Agent); with completion of such requirements set forth in clause (i) through (iii) above to be evidenced to the reasonable satisfaction of Agent; together with evidence that all other applicable Governmental Approvals, to the extent required under applicable Legal Requirements, have been issued and all other applicable Legal Requirements have been satisfied to the extent necessary so as to allow such component of the Improvements at the Hotel Property to be used and operated in accordance with the Loan Documents.
42.Correction of Defects. Borrowers shall promptly correct (or cause the responsible Contractor to correct) all defects in the Phase Zero Renovation Project and/or PIP Project, as applicable, or any departure from the Renovation/PIP Plans and Specifications not previously approved by Agent to the extent required hereunder. Borrowers agree that the advance of any proceeds of the Loan whether before or after such defects or departures from the Renovation/PIP Plans and Specifications are discovered by, or brought to the attention of, Agent shall not constitute a waiver of Agent’s right to require compliance with this covenant.
43.Project Budget.
(a)Generally. The Phase Zero Renovation Budget and PIP Budget detail all applicable Project Related Costs to be incurred by Borrowers until Final Completion of the Projects in accordance with the applicable Plans and Specifications, and Borrower represents and warrants the same to be Borrower’s best estimate of the Project Related Costs to be incurred by Borrower until Final Completion of the Phase Zero Renovation Project and PIP Project, as applicable (including completion of all Punch List Items) in accordance with the applicable Plans and Specifications and all Legal Requirements. Each category of direct and indirect cost (each, a “Line Item”), shall be delineated in the Project Budget with those that are approved as Project Related Costs to be disbursed out of (x) Loan proceeds, subject to availability and satisfaction of all applicable conditions to Advances hereunder and (y) equity contributions (including, without limitation, Key Money, funds held in reserve under the Hotel Management Agreement (subject to the terms and conditions of the Hotel Management Agreement) and funds on deposit in the FF&E Reserve Sub-Account, Net Cash Flow Reserve Sub-Account, and the Renovation/PIP Costs Rebalancing Reserve Sub-Account in accordance with this Agreement). The Phase Zero Renovation Budget and/or PIP Budget, as applicable, shall contain, as of the Closing Date, an “Owner’s Hard Cost Contingency” Line Item of at least ten percent (10.0%) of all Hard Costs, as well as a 「Contingency」 Line Item of at least five percent (5.0%) for all Soft Costs. Except as provided in Section 5.43(e), any revision to the Phase Zero Renovation Budget and/or PIP Budget, as applicable, shall be subject to Agent’s approval, in its reasonable discretion.
(b)Cost Overruns. If Borrowers become aware of any change in Project Related Costs which will increase a category or Line Item of Project Related Costs reflected on the applicable Project Budget, Borrower shall promptly notify Agent in writing and promptly submit to Agent for its approval a revised Phase Zero Renovation Budget and/or PIP Budget, as applicable. Subject to Section 5.43(e), any reallocation of any category or Line Items in the Phase Zero Renovation Budget and/or PIP Budget, as applicable, in connection with cost overruns shall be subject to Agent's approval in Agent's reasonable discretion. Agent shall have
145
49289660

no obligation to make any further Advances unless and until the revised Phase Zero Renovation Budget and/or PIP Budget, as applicable, so submitted by Borrower is approved by Agent (unless Agent’s approval is not required pursuant to Section 5.43(e), and Agent reserves the right to approve or disapprove any revised Phase Zero Renovation Budget and/or PIP Budget, as applicable, in its reasonable discretion and to require the funding of a Renovation/PIP Costs Shortfall if required pursuant to Section 2.20.8 hereof.
(c)Feasibility. The applicable Construction Schedule is or will be accurate and complete in all material respects and, to Borrower’s best information and belief, can be met as and when required thereunder.
(d)Change Orders. Borrowers shall permit no Change Orders or deviations from the applicable Plans and Specifications, the applicable Construction Schedule or applicable Project Budget or any amendment, modification or supplement to any Material Agreement during construction without the prior written consent of Agent acting in its reasonable discretion. Any Change Orders (regardless of whether such Change Order is a Material Change Order) shall clearly delineate the proposed changes to the Plans and Specifications with bubbles or other clear method of indicating revisions to the prior version. Notwithstanding the foregoing, Borrowers may permit Change Orders that are not Material Change Orders without Agent’s consent so long as Borrowers shall deliver to Agent and Construction Consultant copies of such Change Orders promptly following execution thereof. If the cost of any Change Order would result in an increase of construction costs, such increased costs shall be paid for with Borrowers’ equity, or, if Borrowers are entitled to same pursuant to clause (e) of this Section 5.43 hereof, Cost Savings or a reallocation of the “Owner’s Hard Cost Contingency”, and Borrowers shall deliver a revised Phase Zero Renovation Budget and/or PIP Budget, as applicable, to Agent pursuant to clause (e) of this Section 5.43 with respect thereto.
(e)Cost Savings and Contingency Reserve.
(i)Reallocation of Cost Savings to Contingency. With respect to Project Related Costs set forth in the Phase Zero Renovation Budget and/or PIP Budget, as applicable, after Borrowers have delivered to Agent reasonably satisfactory evidence that the requirements set forth in the definition of "Cost Savings" have been satisfied, Borrowers may revise the Phase Zero Renovation Budget and/or PIP Budget, as applicable, from time to time to reallocate demonstrated Cost Savings available under any Line Item to any other Line Item in the Phase Zero Renovation Budget and/or PIP Budget, as applicable, (and subsequently utilized in accordance with clause (ii) immediately below). Notwithstanding the foregoing, until such time as Borrowers are entitled to an Advance in respect of Retainage pursuant to the terms hereof, Borrowers shall not have the right to reallocate as Cost Savings any amounts required to be set aside as Retainage for such Line Item.
(ii)Reallocation of Contingency to Other Line Items.
(1)Subject to the prior written approval of Agent, Borrowers may reallocate 「Owner's Hard Cost Contingency」 in the Phase Zero Renovation Budget and/or PIP Budget, as applicable, to other Line Items for Project Related Costs that are Hard Costs in the Phase Zero Renovation Budget and/or PIP Budget, as applicable,, provided, however, that Agent's prior approval shall not be required with respect to any such reallocation of 「Owner's Hard Cost Contingency」 to other Line Items for Project Related Costs that are Hard Costs in the applicable Project Budget if the amount so reallocated (together with all other amounts of 「Owner's Hard Cost Contingency」 previously reallocated), when expressed as a percentage of total 「Owner's Hard Cost Contingency」 in the applicable Project Budget (taking into account demonstrated Cost
146
49289660

Savings reallocated pursuant to Section 5.43(e)(i) above), is equal to or less than the percentage of completion of the applicable Project at the time of such reallocation.
(iii)Subject to the prior written approval of Agent, Borrower may reallocate 「Owner's Soft Cost Contingency」 in the Phase Zero Renovation Budget and/or PIP Budget, as applicable, to other Line Items for Project Related Costs that are Soft Costs or Hard Costs in the applicable Project Budget (excluding operating expenses or Debt Service, unless Final Completion of both the Phase Zero Renovation Project and PIP Project has occurred), provided, however, that Agent's prior approval shall not be required with respect to any such reallocation of 「Owner's Soft Cost Contingency」 to other Line Items for Project Related Costs that are Soft Costs and/or Hard Costs in the applicable Project Budget if the amount so reallocated (together with all other amounts of 「Owner's Soft Cost Contingency」 previously reallocated), when expressed as a percentage of total 「Owner's Soft Cost Contingency」 in the applicable Project Budget (taking into account demonstrated Cost Savings reallocated pursuant to Section 5.43(e)(i) above), is equal to or less than the percentage of completion of the applicable Project Budget at the time of such reallocation; provided, however, in no event shall more than fifty percent (50%) of the “Owner’s Soft Cost Contingency” available for reallocation be reallocated to Hard Costs.
(iv)For the avoidance of ambiguity, at no time shall (x) the “Owner’s Hard Cost Contingency” be less than ten percent (10%) of all remaining Hard Costs set forth in the applicable Project Budget and (y) the “Owner’s Soft Cost Contingency” be less than five percent (5%) of all remaining Soft Costs set forth in the applicable Project Budget.
(f)General Conditions. Notwithstanding anything to the contrary set forth in this Agreement, to the extent the applicable Project Budget includes a Line Item for the General Contractor’s 「General Conditions」, Borrower shall not be permitted to reallocate Cost Savings or any “Owner’s Hard Cost Contingency” or “Owner’s Soft Cost Contingency” to the Line Item for 「General Conditions」 without Agent’s prior written consent, not to be unreasonably withheld. In the event of an inconsistency or conflict between this subsection (f), on the one hand, and any other provision set forth in any Loan Document, on the other hand, this subsection (f) shall control.
(g)Stored Materials.
(i)Lender shall not be required to disburse any funds for any materials, machinery or other personal property not yet incorporated into the Phase Zero Renovation Project and/or PIP Project, as applicable, (the “Stored Materials”), unless the following conditions are satisfied at Borrower's sole cost and expense:
(1)Borrower shall deliver to Agent bills of sale or other evidence reasonably satisfactory to Agent of the cost of, and, subject to the payment therefor, the Borrower's title in and to such Stored Materials;
(2)the Stored Materials are and at all times shall be located in the United States;
(3)the Stored Materials are identified to the Property and Borrower, are segregated so as to adequately give notice to all third parties of Borrower's title in and to such materials, and are components in substantially final form ready for incorporation into the Improvements;
147
49289660

(4)the Stored Materials are stored at the Property or at such other third-party owned and operated site as Agent shall approve, and are protected against theft and damage in a manner satisfactory to Agent, including, if requested by Agent, storage in a bonded warehouse in the greater metropolitan area in which the Property is located;
(5)with respect to Stored Materials that are not stored at the Property, such Stored Materials will not be moved except in connection with the delivery of such materials to the Property or to another storage location that conforms with the requirements of this Section 5.43(g);
(6)the Stored Materials will be paid for in full with the funds to be disbursed, and all lien rights or claims of the supplier will be released upon full payment;
(7)Agent (for the benefit of Lenders) has or will have upon payment with disbursed funds a perfected, first priority security interest in the Stored Materials;
(8)the Stored Materials are insured for an amount equal to their replacement costs;
(9)the aggregate cost of Stored Materials stored at the Property is approved by the Construction Consultant and, if required by Agent, the Construction Consultant shall certify that it has inspected such Stored Materials and they are in good condition and suitable for use in connection with the Project Improvements;
(10)If required by Agent, Agent shall have received a warehouseman’s letter or similar letter or agreement in which the landlord, warehouseman, processor, or other Person that may have lienholders’ enforcement rights with respect to any Stored Materials in such Person’s possession, custody or control shall (A) waive or subordinate its liens and claims with respect to any Stored Materials in favor of Agent’s Lien and (B) assure Agent’s access to such Stored Materials to enable Agent to repossess and enforce its Lien and other rights with respect to such Stored Materials; and
(11)the aggregate cost of Stored Materials stored on the Property at any one time shall not exceed $500,000 and the aggregate cost of Stored Materials stored off the Property at any one time shall not exceed $2,000,000 unless otherwise approved by Agent acting in its sole discretion.
44.Construction Consultant.
(a)Borrowers acknowledge that (i) the Construction Consultant has been retained by Agent to act as a consultant and only as a consultant to Agent in connection with the Phase Zero Renovation Project and PIP Project and has no duty to Borrowers, (ii) the Construction Consultant shall in no event have any power or authority to give any approval or consent or to do any other act or thing which is binding upon Agent, (iii) Agent reserves the right to make any and all decisions required to be made by Agent under this Agreement and to give or refrain from giving any and all consents or approvals required to be given by Agent under this Agreement and to accept or not accept any matter or thing required to be accepted by Agent under this Agreement, and without being bound or limited in any manner or under any circumstance whatsoever by any opinion expressed or not expressed, or advice given or not given, or information, certificate or report provided or not provided, by the Construction
148
49289660

Consultant with respect thereto, (iv) Agent reserves the right in its sole and absolute discretion to disregard or disagree, in whole or in part, with any opinion expressed, advice given or information, certificate or report furnished or provided by the Construction Consultant to Agent or any other person or party, and (v) Agent reserves the right to replace the Construction Consultant with another construction consultant at any time and without prior notice to or approval by Borrower.
(b)The Construction Consultant shall perform the following services on behalf of Agent:
(i)prepare the Project Reports;
(ii)review and advise Agent whether, in the opinion of the Construction Consultant, the applicable Plans and Specifications are satisfactory;
(iii)review Draw Requests and Change Orders;
(iv)make inspections and visits;
(v)attend all meetings of any nature relating to the Phase Zero Renovation Project and/or PIP Project;
(vi)review any Contracts, Governmental Approvals or other documentation relating to the applicable Project requested by Agent or the Construction Consultant; and
(vii)take such other actions deemed necessary by Agent or the Construction Consultant in order to effectively administer and review the applicable Project.
(c)The fees, costs and expenses of the Construction Consultant shall be paid by Borrower (and costs and expenses incurred by Agent on account thereof shall be reimbursed to Agent) after Borrowers receive the Construction Consultant’s invoice approved by Agent for payment to the extent such fees are set forth in the applicable Project Budget or, if not set forth in the applicable Project Budget, within fifteen (15) days of request therefor, but neither Agent nor the Construction Consultant shall have any liability to Borrowers on account of (i) the services performed by the Construction Consultant, (ii) any neglect or failure on the part of the Construction Consultant to properly perform its services or (iii) any approval by the Construction Consultant of the Phase Zero Renovation Project and/or the PIP Project. Neither Agent nor the Construction Consultant assumes any obligation to Borrowers or any other Person concerning the quality of construction of the applicable Project or tenant improvement work or the absence therefrom of defects.
45.Collective Bargaining Agreements
(a)Borrowers shall, and shall cause the Hotel Manager and their Affiliates (as applicable) to, remain in compliance in all material respects with the terms, conditions, and obligations under the Collective Bargaining Agreements, as each such agreement may be amended, restated, replaced, supplemented or otherwise modified from time to time in accordance with the terms therein and herein and applicable Law.
(b)Borrowers shall, within five (5) Business Days, provide Agent with a copy of any notice any Borrower receives alleging that a Borrower, Hotel Manager or the Hotel Property is in material breach of or default under a Collective Bargaining Agreement.
149
49289660

(c)Borrowers shall deliver a copy of any amendment to, or modification of, any of the Collective Bargaining Agreements to Agent within ten (10) Business Days of any Borrower receiving fully executed copies of the same.
(d)Neither any Borrower nor the Hotel Manager shall cease to be a party or otherwise subject to any of the Collective Bargaining Agreements without the express prior written consent of the Lenders, nor shall any Borrower or the Hotel Manager undertake any act or omission that could cause any Lender or their Affiliates to become a party to or subject to any of the Collective Bargaining Agreements. Borrowers shall defend and hold harmless Agent, the Lenders and their Affiliates for breach of any of the foregoing, including any and all liabilities resulting therefrom. Upon termination of any of the Collective Bargaining Agreements as permitted under the Loan Documents (and upon any expiration of any subsequent collective bargaining agreement), Borrowers shall forward to Agent copies of any new Collective Bargaining Agreement within ten (10) Business Days of any Borrower being provided notice of the execution of same.
(e)Borrower shall promptly notify Agent within five (5) Business Days upon the occurrence of any Pension Lien on the Property.
(f)Borrower shall promptly notify Agent within five (5) Business Days upon the occurrence or threatened (in writing) occurrence of any of the matters described in Section 3.28 or Section 3.43(b).
Article VI
RESERVED
Article VII
EVENTS OF DEFAULT
1.Events of Default. The following shall each constitute an 「Event of Default」 hereunder:
(a)the failure of Borrowers to (i) pay when due the principal of the Loan (including, without limitation, the unpaid principal of the Loan on the Maturity Date) or (ii) any regularly scheduled monthly payment of accrued, unpaid Interest (including, to the extent applicable, interest at the Default Rate) on the Note (provided, however, that it shall not be an Event of Default if such failure is with respect to Interest and there are sufficient funds in the (x) Cash Management Account to make the payment required under Section 4.4(a)(vii), or (y) Debt Service Reserve Sub-Account to pay such Interest as and when required under this Agreement, no other Event of Default is then continuing and Agent or Servicer fails to make such payment (or cause such payment to be made) in violation of this Agreement and provided, however, that Borrowers shall a grace period of two (2) Business Days following Agent’s notice to Borrowers of such failure, with respect to breaches of this subclause (ii), such grace period to be limited to two (2) times during the entire term of the Loan; (iii) deposit sums in the Clearing Account or the Cash Management Account, as applicable, within two (2) Business Days after Borrowers’ or Garage Manager’s receipt thereof (provided that an Event of Default arising under this subclause (iii) shall be deemed cured if such sums are deposited in the Clearing Account or the Cash Management Account within two (2) Business Days following Agent’s notice to Borrowers of such failure, provided that such failure does not occur more than three (3) times in any twelve (12) month period); or (iv) pay Additional Interest on the Note or any payment required pursuant to Section 2.6 within five (5) Business Days after notice from Agent of the non-payment thereof;
(b)the failure of Borrowers to pay when due or deposit when due any other Obligations (excluding those referred to in clause (a) of this Section 7.1) on or before the due
150
49289660

date therefor and such failure continues for five (5) Business Days after notice from Agent of the non-payment thereof;
(c)any Borrower or any other Credit Party shall fail in the due performance or observance of any covenant, agreement or term binding upon Borrowers or such other Credit Party contained in any Loan Document (including each Guaranty), other than those covenants, agreements or terms which Borrowers’ or such Credit Party’s failure to perform would constitute another Event of Default referred to in this Section 7.1, and such failure shall continue unremedied for more than thirty (30) days after notice thereof shall have been given to Borrowers by Agent; provided, however, that if such failure is of a nature such that it cannot be cured by the payment of money and if such failure requires work to be performed, acts to be done or conditions to be removed which cannot by their nature, with due diligence, be performed, done or removed, as the case may be, within such 30-day period and Borrowers or such other Credit Party, as the case may be, shall have commenced to cure such failure within such 30-day period, such period shall be deemed extended for so long as shall be required by Borrowers or the applicable Credit Party, as the case may be, in the exercise of due diligence to cure such failure, but in no event shall such 30-day period be so extended to be a period in excess of ninety (90) days;
(d)any warranty or representation made by any Borrower or a Credit Party pursuant to this Agreement or any other Loan Document or any document, instrument or certificate heretofore or hereafter executed or delivered in connection herewith or therewith shall prove to have been incorrect or misleading in any material respect when made or deemed to have been made; provided, however, that if such false or misleading representation or warranty was not intentionally false or misleading, and is susceptible of being cured, so long as such misrepresentation does not have a Material Adverse Effect, Borrowers shall have the right to cure the underlying facts or circumstances that cause the applicable representation or warranty to have been false or misleading (as opposed to merely providing notice to Lender of such facts or circumstances) within forty-five (45) days after the earlier to occur of (i) written notice from Lender and (ii) Borrowers’ knowledge of such false or misleading representation or warranty;
(e)any breach by any Borrower of any of its obligations, beyond any applicable grace period provided for therein, under any Operations Agreement, Garage Management Agreement or any other Material Agreement and such default would reasonably likely result in a Material Adverse Effect and such breach shall continue unremedied for more than thirty (30) days after notice thereof shall have been given to Borrowers by Agent; provided, however, that if such failure is of a nature such that it cannot be cured by the payment of money and if such failure requires work to be performed, acts to be done or conditions to be removed which cannot by their nature, with due diligence, be performed, done or removed, as the case may be, within such 30-day period and Borrowers or such other Credit Party, as the case may be, shall have commenced to cure such failure within such 30-day period, such period shall be deemed extended for so long as shall be required by Borrowers or the applicable Credit Party, as the case may be, in the exercise of due diligence to cure such failure, but in no event shall such 30-day period be so extended to be a period in excess of ninety (90) days;
(f)any Borrower or any other Credit Party shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any such proceeding or petition, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Borrower or any other Credit Party or for a substantial part of its respective assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding or petition, (v) make a general
151
49289660

assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(g)an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of any Borrower or any other Credit Party for its respective debts, or of a substantial part of its respective assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Borrower or any other Credit Party for a substantial part of its respective assets, and, in any such case, such proceeding or petition shall not have been discharged, stayed or dismissed within ninety (90) days of an order or decree approving or ordering any of the foregoing shall be entered;
(h)any Borrower shall fail in the due performance and observance of any of its covenants contained in the second and third sentence of Section 5.7, Sections 5.9, 5.11 (other than the second sentence of Section 5.11(a)(ii)) (provided, however, that it shall not be an Event of Default, if such failure is with respect to payment of Insurance Premiums and there are sufficient funds in the Tax and Insurance Reserve Sub-Account to pay such Insurance Premiums, as and when required under this Agreement, no other Event of Default is then continuing and Agent or Servicer fails to make such payment (or cause such payment to be made) in violation of this Agreement), 5.16, 5.20 through 5.22, 5.34 (provided, however, that it shall not be an Event of Default, if a Person owning a direct or indirect ownership interest in any Borrower Party shall be or become a Proscribed Person and Borrower Party causes such Person to no longer own a direct or indirect ownership interest in such Borrower Party within thirty (30) days following the earlier of (i) notice to Borrowers thereof from Agent or (ii) any Borrower Party obtaining knowledge that such Person is or became a Proscribed Person), and/or 5.35;
(i)Borrowers shall fail in the due performance and observance of any of its covenants contained in Sections 5.1, and such default continues for five (5) Business Days following notice to Borrowers thereof from Agent;
(j)there shall have been rendered judgments for the payment of money against any Borrower in excess of $500,000 in the aggregate or against any Guarantor in excess of $5,000,000 in the aggregate and any such judgment(s) shall not have been discharged, stayed, bonded or satisfied for a period of sixty (60) days after the entry of such judgment(s), or such judgment(s) shall have continued unsatisfied for a period of sixty (60) days after the termination of any stay of execution thereon obtained within such first mentioned sixty (60) days;
(k)(i) any Borrower shall have incurred any liability or an event or action shall have occurred that could reasonably be expected to cause such Borrower to incur any liability, (x) with respect to any Pension Plan under Section 412 of the Code or Title IV of ERISA, or (y) on account of a partial or complete withdrawal (as such terms are defined in Section 4203 and 4205 of ERISA, respectively) from, unpaid contributions to, or the termination or insolvency of, any Multiemployer Plan or (ii) any Borrower shall have engaged in any transaction in connection with which such Borrower is subject to either a material civil penalty assessed pursuant to the provisions of Section 502(i) of ERISA or a material tax imposed under the provisions of Section 4975 of the Code, and in each case in subclauses (i) and (ii) of this clause (l), such event or condition, together with all other such events or conditions under this clause (l), if any, would reasonably be expected to result in a Material Adverse Effect;
(l)Intentionally left blank;
(m)Borrowers shall fail in the due performance and observance of any of its covenants contained in Sections 5.2(e) and 5.6 (provided, however, that it shall not be an Event
152
49289660

of Default, if such failure is with respect to payment of Property Taxes and there are sufficient funds in the Tax and Insurance Reserve Sub-Account to pay such Property Taxes, as and when required under this Agreement, no other Event of Default is then continuing and Agent or Servicer fails to make such payment (or cause such payment to be made) in violation of this Agreement), the first sentence of Section 5.7, the second sentence of Section 5.11(a)(ii), the fourth sentence of Section 5.12(b), the fourth sentence of Section 5.13(a) or Sections 5.23, 5.24, 5.25, 5.39 and/or 5.40 and such default continues for ten (10) Business Days following notice to Borrower thereof from Agent;
(n)Borrowers shall fail to obtain an Interest Rate Protection Agreement as and when required by Section 2.9.1, any default by Borrowers shall occur and shall continue, beyond any applicable grace period provided for therein, under any Interest Rate Protection Agreement or if any Interest Rate Protection Agreement required by this Agreement to be in effect with respect to this Agreement shall cease to be in full force and effect and Borrowers fail to cause a replacement Interest Rate Protection Agreement to be to be in full force and effect within ten (10) Business Days thereof;
(o)the occurrence of a Milestone Non-Compliance, as the same may be extended by reason of Force Majeure;
(p)if without Agent’s prior consent, the Hotel Management Agreement is amended, modified or terminated without Agent's consent;
(q)if a default by a Borrower has occurred and continues beyond any applicable cure period under the Hotel Management Agreement (or any successor franchise agreement) if such default permits the Hotel Manager to terminate or cancel the Hotel Management Agreement (or any successor hotel management agreement);
(r)if any License Revocation Event occurs, and such event is not cured within thirty (30) days after the occurrence of such License Revocation Event, provided that such breach shall not be an Event of Default if such breach is not reasonably susceptible of cure within such thirty (30)-day period if Borrower is diligently pursuing a cure of such breach, and in such case, such period shall be extended to a maximum period of sixty (60) days in the aggregate;
(s)if, there is any cessation at any time in construction of such segment of the Phase Zero Renovation Project and/or PIP Project, as applicable, for more than thirty (30) consecutive days (as such period may be extended by Force Majeure) after notice thereof and a failure to resume construction within such period;
(t)if Agent, the Construction Consultant or either of their representatives are not permitted at all reasonable times upon not less than two (2) Business Days’ notice to enter upon the Property in violation of this Agreement to inspect the Improvements and the construction thereof and all materials, fixtures and articles used or to be used in the construction and to examine the applicable Plans and Specifications, or if Borrowers shall fail to furnish to Agent or its authorized representative, when requested upon not less than three (3) Business Days' notice, copies of the applicable Plans and Specifications and any other information required to be delivered to Agent pursuant to the Loan Documents; and/or
(u)Guarantor breaches any of the Guarantor Financial Covenants.
2.Acceleration of Loan. In addition to any other rights and remedies which Agent and Lenders may have under this Agreement and the other Loan Documents or pursuant to law or equity, and without limitation thereof, upon and at any time during the continuance of any
153
49289660

Event of Default, Agent may, by notice to Borrowers, declare the indebtedness evidenced by the Note, together with all other sums payable thereunder and under the other Loan Documents, immediately due and payable (except with respect to any event of the nature described in Section 7.1(f) or (g), with respect to which such indebtedness and all other such sums shall automatically become due and payable upon the occurrence of any such event) and may exercise Agent’s rights and remedies pursuant to any one or more of the Security Documents, the other Loan Documents or as may be available at law or equity.
3.Agent’s Right to Complete; Sums Advanced.
(a)Agent’s Right to Complete. In addition to any other rights and remedies which Agent may have under this Agreement and the other Loan Documents or pursuant to law or equity, and without limitation thereof, after the occurrence and during the continuance of any Event of Default, Agent may enter upon and/or into possession of the Mortgaged Property (or any portion thereof), and any other Collateral and complete any construction that has been commenced by Borrower. Agent shall have the right, at any and all times, to discontinue any work commenced by Agent with respect to any construction commenced by Borrowers (or any portion thereof) or to change any course of action undertaken by it and shall not be bound by any limitations or requirements of time whether set forth herein or otherwise.
(b)Sums Advanced. Borrowers shall be liable to Agent, for the pro rata benefit of Agent and Lenders, for all sums paid or incurred by Agent or Lenders pursuant to the terms of the Loan Documents in connection with the performance of any construction commenced by Borrowers, whether the same shall be paid or incurred pursuant to the provisions of this Section 7.3 or otherwise, and all other payments made or liabilities incurred by Agent under this Agreement of any kind whatsoever, all of which shall be paid by Borrowers to Agent upon demand with interest at the Default Rate to the date of payment to Agent, and all of the foregoing sums, including such interest at the Default Rate, shall be deemed and shall constitute disbursements of Loan proceeds under this Agreement and be evidenced by the Note and secured by the Security Documents.
4.Reserved.
5.Collateral Accounts. Notwithstanding anything to the contrary contained herein but subject to Legal Requirements, after the occurrence and during the continuance of an Event of Default, the rights of Borrowers and each and every other Person (excluding Agent) with respect to the Collateral Accounts, upon notice to Borrowers, shall immediately terminate, and no such Person (excluding Agent) shall make any further withdrawal therefrom. Thereafter, Agent may from time to time designate such signatories with respect to the Collateral Accounts as Agent may desire, and may make or authorize withdrawals from the Collateral Accounts to pay the Obligations in whole or in part and/or pay operating expenses and capital expenditures with respect to the Mortgaged Property and/or any other expenses, all as Agent may deem necessary or appropriate and in such order as Agent may elect. Agent may notify the financial institutions in which any Collateral Account is held that Borrowers no longer have a right to instruct such financial institution with respect to matters relating to the withdrawal, operation or administration of, or investment or application of funds on deposit in such Collateral Account. Without limiting the foregoing, Agent shall have the right to cause the withdrawal of all funds on deposit in any Collateral Account and the deposit of such funds in an account established with Agent at any time following receipt by the financial institution in which such Collateral Account is held of a notice from Agent pursuant to the Account Agreement with respect to such Collateral Account, and Borrowers hereby authorize and direct such financial institutions to make payment directly to Agent of the funds in or credited to such accounts, or such part thereof as Agent may request. Such financial institution shall have the absolute right to rely upon such notice without inquiring as to the accuracy of the matters referred to in such notice and the depositories shall be
154
49289660

fully protected by Borrowers in relying upon such notice from Agent. In the event that Agent delivers such a notice, Agent shall thereafter have the exclusive right to so instruct such financial institution. Nothing in this Section 7.5 shall be construed so as to limit or impair Agent’s absolute right to have a receiver appointed following an Event of Default.
6.No Liability of Agent or Lenders. Whether or not Agent elects to employ any or all of the remedies pursuant to the Loan Documents or otherwise available to it at law or equity upon the occurrence of a Default or an Event of Default, neither Agent nor any Lender shall be liable with respect to any rights or obligations of Borrower or its Affiliates, including the rights and obligations of Borrowers in and to any Leases or to protect the Mortgaged Property or any of the other Collateral, or for payment of any expense incurred in connection with the exercise of any remedy available to Agent or Lenders or for the performance or non-performance of any other obligation of Borrowers. It is expressly understood that Agent and Lenders assume no liability or responsibility for (i) performance of any duties of any Borrower or any other Credit Party hereunder or under any of the other Loan Documents, the Hotel Management Agreement, the Garage Management Agreement, any Permitted Encumbrances, or any Lease, (ii) compliance with any Legal Requirements or any Permitted Encumbrances or (iii) any other matters pertaining to control over the management and affairs of any Borrower or any other Credit Party or the operation, management or ownership of the Mortgaged Property, nor by any such action shall Agent and Lenders be deemed to create a partnership or joint venture with any Borrower or any other Credit Party.
7.Management Agreement. Upon the occurrence and during the continuance of an Event of Default, in addition to any other rights or remedies of Agent hereunder or under the other Loan Documents, Agent may exercise any rights and remedies available to Agent pursuant to the applicable Manager Subordination Agreement, if in effect and/or may require that Borrowers exercise any rights and remedies available to Borrower pursuant to any Management Agreement including the termination thereof, subject to the provisions of the applicable Manager Subordination Agreement. Upon a foreclosure or deed in lieu of foreclosure with respect to all or any portion of the Mortgaged Property, Agent shall have the right to exercise all rights and remedies pursuant to and as and upon the terms described in any Management Agreement and/or the Manager Subordination Agreement.
8.Set-Off. In addition to any rights and remedies of the Lenders provided by law, if an Event of Default exists, with the prior written consent of Agent (in its sole and absolute discretion), each Lender is authorized at any time and from time to time, without prior notice to the Borrower, any such notice being waived by the Borrowers to the fullest extent permitted by law, to set off and apply in favor of the Lenders any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other indebtedness at any time owing to, such Lender to or for the credit or the account of the Borrowers against any and all Obligations owing to the Lenders, now or hereafter existing, irrespective of whether or not the Agent or such Lender shall have made demand under this Agreement or any Loan Document and although such Obligations may be contingent or unmatured. Without limiting the foregoing, and notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, no Lender, any assignee of a Lender, participant or Affiliate thereof shall proceed directly, by right of set-off, banker’s lien, counterclaim or otherwise, against any assets of Borrowers or any Credit Party (including any general or special, time or demand, provisional or other deposits or other indebtedness owing by such Persons to or for the credit or the account of any Borrower or any Credit Party) for the purpose of applying such assets against the Obligations, without the prior written consent of Agent (in its sole and absolute discretion). Any attempt by a Lender to exercise any such rights, whether purportedly under any authority granted pursuant to the Loan Documents or on account of any other legal or equitable right or theory, without first obtaining the prior written consent of Agent (in its sole and absolute discretion) shall be void, of no force or effect, and shall not have any effect on (and under no circumstances
155
49289660

shall be applied in respect of) any outstanding Obligations hereunder. Agent agrees promptly to (i) notify the Borrowers after any such authorized set-off and application made by a Lender; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application and (ii) any Lender exercising such set-off rights in accordance with the terms of this Agreement, shall pay such amounts that are set-off to the Agent for the ratable benefit of the Lenders.
9.Termination of Loan Agreement. Subject to Section 10.25, the obligations of Borrowers hereunder, excluding those which expressly or by the nature thereof survive the termination hereof or repayment of the Loan, shall terminate only upon repayment in full of the Outstanding Principal Balance of the Loan, together with all interest and other indebtedness due and payable in connection therewith, and all other outstanding Obligations.
10.Interest Rate Protection Agreement. Upon the occurrence and during the continuance of any Event of Default, in addition to any other rights or remedies of Agent hereunder or under the other Loan Documents, Agent may exercise all rights and remedies of Agent as a secured party with respect to the security interest of Agent or Lenders in any Interest Rate Protection Agreement or which otherwise arise pursuant to the Loan Documents. Without limiting the foregoing, Agent may cause any Interest Rate Protection Agreement to be terminated or otherwise direct Borrowers’ counterparty under any Interest Rate Protection Agreement to take such actions or omit to take such actions as Agent shall determine. Borrowers covenant and agree to reimburse and indemnify Agent and Lenders for any termination or breakage costs Agent or Lenders may incur as a result of any such termination.
11.Cash Collateral. Upon the occurrence and during the continuance of any Event of Default, in addition to any other rights or remedies of Agent hereunder or under the other Loan Documents, Agent may apply any cash collateral provided in connection with any Alterations to the Obligations, in such order and manner as Agent may elect in its sole and absolute discretion.
12.Guarantor Cure Right. Notwithstanding any provision of the Loan Documents to the contrary, if any Default or Event of Default results from the failure of Guarantor to satisfy the Guarantor Financial Covenants, the same shall be deemed to not constitute a Default or Event of Default hereunder or under the other Loan Documents if, within forty-five (45) days after obtaining knowledge of such Default or Event of Default, an Approved Guarantor, together with Guarantor, as applicable, satisfies the Guarantor Financial Covenants on a standalone or combined basis, as applicable (so long as neither the Guarantor (if it is remaining a Guarantor) nor the Approved Guarantor is the subject of any bankruptcy or other insolvency proceeding) and satisfies the Approved Guarantor Conditions.
Article VIII
SPECIAL PROVISIONS
1.Sale of Loan.
(a)Agent and each Lender shall have the right (i) to sell or otherwise transfer the Loan or any portion thereof (provided that, so long as no Event of Default has occurred and is continuing, any such transferee shall be an Eligible Assignee and no Lender shall sell any direct ownership in the Loan (excluding, for the avoidance of doubt, participation interests) to a Restricted Lender/Assignee) or (ii) to issue or sell one or more participation interests in the Loan, without the consent of Borrowers or any other Person (the transactions referred to in clauses (i) and (ii) are each hereinafter referred to as a “Secondary Market Transaction” and any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Agent’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions. In the
156
49289660

event the initial Lender hereunder sells or assigns all of its interest in the Loan to a Person that is not an Affiliate of Lender, Agent shall provide Borrowers with notice of such sale or assignment not later than five (5) days prior to the consummation of such sale or assignment.
(b)If requested by Agent or any Lender, Borrowers shall reasonably and promptly assist and cooperate with Agent or such Lender in satisfying the market standards to which Agent customarily adheres or which may be reasonably required in the marketplace, by prospective investors, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i)(A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrowers, Guarantor(s) and the Manager, including, without limitation, the information set forth on Exhibit B attached hereto, (B) provide updated budgets and rent rolls relating to the Property, and (C) provide (and cooperate with Agent’s procurement of) updated appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Agent;
(ii)provide opinions of counsel, which may be relied upon by Agent, each Lender, and their respective successors, assigns and participants, underwriters, agents and representatives, as to non-consolidation or any other opinion customary in Secondary Market Transactions with respect to the Property, the Loan Documents, and Borrowers and its Affiliates, which counsel and opinions shall be reasonably satisfactory to Agent and each Lender;
(iii)provide updated, as of the closing date of any Secondary Market Transaction, representations and warranties made in the Loan Documents to the extent applicable;
(iv)execute amendments to the Loan Documents and Borrowers’ organizational documents and such other documents requested by Agent, including without limitation, those documents required pursuant to Section 8.4 below; provided, however, that Borrowers shall not be required to make any Prohibited Changes (as defined below); and
(v)at Agent’s request, make Guarantor and such representatives of Borrowers requested by Agent available to meet with any investors or prospective investors in any potential Secondary Market Transaction at Borrowers’ offices.
(c)Any financial data or financial statements provided pursuant to this Section 8.1 shall be furnished to Agent within ten (10) Business Days after notice from Agent.
2.Confidentiality; Availability of Records. Borrowers acknowledge and agrees that subject to Agent’s and each Lender’s standard confidentiality procedures then in effect, as applicable, Agent and each Lender may provide to any actual or proposed assignee or participant originals or copies of this Agreement, any other Loan Documents and any other documents, instruments, certificates, opinions, insurance policies, letters of credit, financial statements, reports, requisitions and other materials and information at any time submitted by or on behalf of Borrowers, any other Credit Party or other Persons and/or received by or on behalf of Agent or any Lender in connection with the Loan; provided, however, that such recipients shall agree to be bound by the terms of this Section 8.2 and such information shall not be disclosed by any such
157
49289660

proposed assignee or participant other than to their respective employees, directors, officers, advisors or agents who need that information and agree to be bound by the provisions of this Section 8.2. Without the consent of Borrowers, neither Agent nor any Lender shall deliver to any third party any non-public information relating to Borrowers or any other Credit Party which (a) has been received by Agent or any Lender from Borrowers or any other Credit Party or from Agent and (b) Borrowers or such other Credit Party or Agent has advised Agent or such Lender in writing that the same is confidential, however, information may be disclosed by Agent or any Lender pursuant to the first sentence of this Section 8.2 and in the event that any of them becomes required by law, regulation or legal or regulatory process or is requested by a governmental agency or self-regulatory organization (collectively, “Law”) to disclose information; provided that Agent or Lender, as applicable, will, to the extent not prohibited by Law, provide Borrowers with prompt notice of such requirement or request so that Borrowers, at its sole expense, may seek a protective order or other appropriate remedy, or waive Agent’s or such Lender’s, as applicable, compliance with the provisions of this Agreement, or both. In the event Borrowers fail to obtain a protective order or other appropriate remedy, or if Borrowers waive compliance with the terms of this Agreement, Agent or such Lender may, without liability under this Agreement, disclose that portion of such information that its counsel advises is so required or requested by Law to be disclosed.
3.Severance.
1.Severance Documentation.     Agent, without in any way limiting Agent’s and Lender’s other rights hereunder, in its sole and absolute discretion, shall have the right, at any time (whether prior to or after any Secondary Market Transaction), to require Borrowers to execute and deliver “component” notes and/or one or more substitute notes evidencing the portion of the Loan held by a particular Lender (and the term “Note” as used in this Agreement and in all the other Loan Documents shall include all such component notes and/or substitute notes but shall exclude any Note replaced by the same), and/or modify the Loan in order to create one or more senior and subordinate notes (e.g., an A/B or A/B/C structure) or pari passu notes and/or one or more additional components of the Note or Notes, reduce the number of components of the Note, revise the interest rate for each component, reallocate the principal balances of the Note and/or the components, increase or decrease the monthly debt service payments for each component or eliminate the component structure and/or the multiple note structure of the Loan (including the elimination of the related allocations of principal and interest payments); provided, that, notwithstanding anything herein to the contrary, in no case shall Borrowers be required to make (nor shall Lender be permitted to make) any Prohibited Changes. At Agent’s election, each note comprising the Loan may be subject separately to one or more Secondary Market Transaction. Agent shall have the right to modify the Note and/or Notes and any components in accordance with this Section 8.3.1 and, provided that such modification shall comply with the terms of this Section 8.3.1, such modification shall become immediately effective.
2.Reserved.
3.Cooperation; Execution; Delivery. Borrowers shall reasonably cooperate with all reasonable requests of Agent in connection with this Section 8.3. If requested by Agent, Borrowers shall (i) cooperate with all reasonable requests of Agent in order to establish the “component” notes, (ii) promptly execute and deliver such documents (including, without limitation, any amendments to the Loan Documents) as shall be required by Agent in connection with any modification pursuant to this Section 8.3, all in form and substance satisfactory to Agent, including, the severance of security documents if requested; provided, that notwithstanding anything herein to the contrary, Borrowers shall not be required to (I) modify or amend any Loan Document if such modification or amendment would (a) change the aggregate Outstanding Principal Balance of the Loan, the then-applicable Maturity Date, the weighted
158
49289660

average interest rate effective immediately prior to such modification or the amortization of principal as set forth herein or in the Note (provided that such weighted average interest rate may thereafter change to reflect any implementation of the Default Rate after principal payments and/or the application of Net Insurance Proceeds pursuant hereto), (b) alter the rights or benefits or increase the obligations or liabilities of Borrowers or Guarantor under the Loan Documents (other than to a de minimis extent), or (c) modify or amend any other economic or other term of the Loan (other than to a de minimis extent) and (II) create a mezzanine loan (i.e., a loan with pledged equity as collateral) or a preferred equity investment arrangement (the changes described in the foregoing clauses (I) and (II) being collectively referred to as “Prohibited Changes”). In the event Borrowers fail to execute and deliver such documents to Agent within five (5) Business Days following such request by Agent, Borrowers hereby absolutely and irrevocably appoint Agent as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such transactions, Borrowers hereby ratifying all that such attorney shall do by virtue thereof (provided that notwithstanding anything herein to the contrary, Lender shall not be permitted to make any Prohibited Changes). It shall be an Event of Default under this Agreement, the Note, the Mortgage and the other Loan Documents if Borrowers fail to comply with any of the terms, covenants or conditions of this Section 8.3 after expiration of five (5) Business Days after notice thereof.
4.Costs and Expenses. In connection with any Secondary Market Transaction, Borrowers shall be responsible for their own costs and expenses (including legal fees) incurred in connection with such Secondary Market Transaction and for the reasonable out-of-pocket costs and expenses incurred by Agent and Lender; provided, however, that notwithstanding anything herein to the contrary, with respect to any Secondary Market Transaction, Borrowers shall not be required to pay or incur costs and expenses covered by this Section 8.4 (whether costs or expenses of Borrowers or Agent and Lenders, and including costs pursuant to clause (C) of Section 8.1(b)(ii)) in excess of $50,000.
5.Register.
(a)Loan Register. Agent, acting solely for this purpose as an agent of Borrowers, shall maintain at one of its offices in the United States a register for the recordation of the names and addresses of Lenders, and the principal amounts (and stated interest) of the Loans (or portions thereof) owing to each Lender pursuant to the terms hereof from time to time and each repayment with respect to the principal amount (and stated interest) of the Loan of each Lender (the “Register”). Failure to make any such recordation, or any error in such recordation shall not affect Borrowers’, Agent’s or any Lender’s obligations in respect of the Loan. Without limiting the terms and provisions of Section 8.1 hereof, no assignment, sale, negotiation, pledge, hypothecation or other transfer of any part of any Lender’s interest in and to the Loan shall be effective until such Lender shall have provided Agent with written notice of such transfer and Agent shall have registered such assignee’s name and address in the Register. The entries in the Register shall be conclusive absent manifest error, and Borrowers, Agent and Lender may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior notice. Lender hereby agrees to indemnify Agent and to hold Agent harmless from any actions, suits, claims, demands, liabilities, losses, damages, obligations and actual costs and expenses which Lender sustains or incurs as a consequence of Agent maintaining the Registry, except to the extent such loss or expense is caused by Agent’s fraud or willful misconduct.
159
49289660

(b)Participant Registry. Borrowers agree that each participant shall be entitled to the benefits of Section 2.13 (subject to the requirements and limitations therein, including the requirements under Section 2.13 (it being understood that the documentation required under Section 2.13 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 8.1; provided that such participant shall not be entitled to receive any greater payment under Section 2.13, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Regulatory Change that occurs after the participant acquired the applicable participation. Each Lender that sells a participation interest in the Loan shall, acting solely for this purpose as an agent of Borrowers, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in the Loan or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that the Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(c)This Section 8.5, the Register and the Participant Register are intended to be construed so that the Note is at all times maintained in 「registered form」 within the meaning of Section 5f.103-1(c) of the United States Treasury Regulations (or any other successor provision of such regulations).
Article IX
AGENT AND LENDERS
1.Appointment.
(a)Each Lender hereby irrevocably designates and appoints Agent as the agent of such Lender under this Agreement and the other Loan Documents, including acting as collateral agent for Lenders under the Loan Documents, or any of them. Each such Lender irrevocably authorizes Agent, as the agent for such Lender, to take such action on its behalf and in Agent’s designated capacity under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to Agent by the terms of this Agreement and the other Loan Documents, together with such other powers as are reasonably incidental thereto. So long as no Event of Default exists and Deutsche Bank AG, New York Branch owns twenty-five percent (25%) or more of the Loan, Deutsche Bank AG, New York Branch or an Affiliate of Deutsche Bank AG, New York Branch shall remain as Agent (unless removed for cause or required to resign for cause as Agent by the Lenders pursuant to the terms of the Co-Lender Agreement). Notwithstanding any provision to the contrary elsewhere in this Agreement and the other Loan Documents, Agent shall not have any duties or responsibilities, except those expressly set forth herein or therein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties,
160
49289660

obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against Agent and in favor of Lenders.
(b)No individual Lender or group of Lenders shall have any right to modify or waive, or consent to the departure of any party from any provision of any Loan Document, or secure or enforce the Obligations. All such rights, on behalf of Agent or any Lender or Lenders, shall be held and exercised solely by and at the option of Agent for the pro-rata benefit of Lenders. Except as expressly otherwise provided in this Agreement or the other Loan Documents, Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which Agent is expressly entitled to exercise or take under this Agreement or the other Loan Documents, including (i) the determination if and to what extent matters or items subject to Agent’s satisfaction are acceptable or otherwise within its discretion, and (ii) the exercise of remedies under this Agreement or any other Loan Document, and any action so taken or not taken shall be deemed consented to by Lenders.
(c)In case of the pendency of any bankruptcy, receivership, insolvency, liquidation, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Borrower, Guarantor or any Affiliate of any Borrower or Guarantor, no individual Lender or group of Lenders shall have the right, and Agent (irrespective of whether the principal of the Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Agent shall have made any demand on Borrowers) shall be exclusively entitled and empowered on behalf of itself and Lenders, by intervention in such proceeding or otherwise:
(i)to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loan and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of Lenders and Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of Lenders and Agent and their respective agents and counsel) and all other amounts due Lenders and Agent hereunder allowed in such judicial proceeding; and
(ii)to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, conservator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to Agent and, in the event that Agent shall consent to the making of such payments directly to Lenders, to pay to Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Agent and its agents and counsel, and any other amounts due Agent hereunder. Nothing contained herein shall be deemed to authorize Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of Lenders except as approved by Lenders or to authorize Agent to vote in respect of the claims of Lenders except as approved by Lenders in any such proceeding.
2.Delegation of Duties. Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to receive and rely upon advice of counsel concerning all matters pertaining to such duties. Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.
3.Exculpatory Provisions. Neither Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any action lawfully taken
161
49289660

or omitted to be taken by it or such Person or Persons under or in connection with this Agreement or any other Loan Document (except to the extent that any of the foregoing are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from its or such Person or Persons’ own gross negligence or willful misconduct) or (ii) responsible in any manner to any Lender for any recitals, statements, representations or warranties made by any Borrower or Guarantor or any officer thereof contained in any Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by Agent under or in connection with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of any Borrower or Guarantor to perform its obligations thereunder. Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Borrower or Guarantor.
4.Reliance by Agent. Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, instrument, writing, resolution, notice, consent, certificate, certification, affidavit, letter, facsimile message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to the parties to the Loan), independent accountants and other experts selected by Agent. Agent shall take any and all direction with regard to administration of the Loan Documents from Lenders holding such portion of the Loan as may be agreed by Lenders in any Co-Lender Agreement. Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless such Note shall have been transferred in accordance with this Agreement and all actions required in connection with such transfer shall have been taken. Notwithstanding anything to the contrary set forth herein: Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of one hundred percent (100%) of Lenders (or any other instructing group of Lenders specified by this Agreement or by a separate agreement between Agent and any of the Lenders) as it deems appropriate or it shall first be indemnified to its satisfaction by Lenders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of Lenders as may be directed under the Co-Lender Agreement and such request and any action taken or failure to act pursuant thereto shall be binding upon all Lenders and all future holders of all or any interest in the Loan.
5.Notice of Default. Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder or under any of the other Loan Documents unless Agent shall have received notice from a Lender or Borrowers, referring to the Loan Documents, describing such Default or Event of Default and stating that such notice is a “notice of default”. In the event that Agent receives such a notice and a Default has occurred, Agent shall promptly give notice thereof to Lenders. Agent shall take such action with respect to such Default or Event of Default as may be agreed by Agent and Lenders separately in any Co-Lender Agreement; provided that unless and until Agent shall have received such directions, Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of Lenders.
6.Non-Reliance on Agent and Other Lenders. Each Lender expressly acknowledges that neither Agent nor any of its respective officers, directors, employees, agents, attorneys-in-fact or Affiliates have made any representations or warranties to it and that no act by Agent hereafter taken, including any review of the affairs of any Borrower or Guarantor or any Affiliate
162
49289660

of any Borrower or Guarantor, shall be deemed to constitute any representation or warranty by Agent to any Lender. Each Lender represents to Agent that it has, independently and without reliance upon Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of an investigation into the business, operations, property, financial and other condition and creditworthiness of the Credit Parties and their Affiliates and made its own decision to make its Ratable Share of the Loan hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the parties to the Loan and their Affiliates. Except for notices, reports and other documents expressly required to be furnished to Lenders by Agent hereunder, Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of any Credit Party or any Affiliate of any Credit Party that may come into the possession of Agent or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.
7.Indemnification. Lenders agree to indemnify Agent in its capacity as such (to the extent not reimbursed by Borrowers and without limiting the obligation of Borrowers to do so to the extent required pursuant to the other provisions of this Agreement), ratably according to their respective Ratable Share on the date on which indemnification is sought under this Section 9.7 (or, if indemnification is sought after the date upon which the Loan shall have been paid in full, ratably in accordance with such Ratable Share immediately prior to such date), for, and to save Agent harmless from and against, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time (including, without limitation, at any time following the payment of the Obligations) be imposed on, incurred by or asserted against Agent in any way relating to or arising out of, the Loan, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from Agent’s gross negligence or willful misconduct. The provisions of this Section 9.7 shall survive the payment of the Obligations and the termination of this Agreement.
8.Agent in Its Individual Capacity. Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with any Credit Party or any Affiliate of any Credit Party as though Agent were not an agent hereunder. With respect to the Ratable Share of the Loan made or held by it at any time, Agent shall have the same rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not an agent, and the terms “Lender” and “Lenders” shall include Agent in its individual capacity.
9.Appraisals. Agent may, at its option, commission one or more new and/or updated appraisals from time to time after the Closing Date; provided, however, that Borrowers shall only be required to reimburse Agent for such new and/or updated appraisal (A) not more than one (1) time annually unless an Event of Default is continuing, (B) in connection with Section 2.17 hereof, (C) in connection with a Secondary Market Transaction (but subject to Section 8.4) and (D) at any time such appraisal is required by applicable Legal Requirements or regulatory requirements.
163
49289660

10.Ratable Share. (i) The liabilities of Lenders shall be several and not joint, (ii) no Lender shall be responsible for the obligations of any other Lender, and (iii) each Lender shall be liable to Borrowers only for its respective Ratable Share of the Loan. Notwithstanding anything to the contrary herein, all indemnities by Borrower and obligations for costs, expenses, damages or advances set forth herein shall run to and benefit each Lender in accordance with its Ratable Share.
11.Reserved.
12.Co-Lender Agreement.
(a)    Each Borrower hereby acknowledges and agrees that, subject to the terms set forth in Section 9.12(b), Lender, any other Lenders and Agent may at any time and from time to time enter into one or more agreements (any such agreement as the same may be modified, amended, restated supplemented or replaced from time to time, a “Co-Lender Agreement”) governing the relationship between such parties, including, without limitation, the rights of Lenders as among themselves and the manner in which Agent shall administer the Loan. Each Borrower acknowledges and agrees that Agent’s discretion under this Agreement or the other Loan Documents may be subject to the limitations in any such Co-Lender Agreements, including the requirement that Agent obtain approval of a specified percentage of Lenders or all of the Lenders prior to granting certain consents or approvals or taking certain actions under this Agreement and under the other Loan Documents. Any Co-Lender Agreement is intended and will be solely for the benefit of Agent and the applicable Lenders, and each Borrower acknowledges and agrees that neither any Credit Party nor any other Person shall be a third-party beneficiary (intended or otherwise) of any of the provisions therein, or have any rights thereunder or be entitled to rely on any of the provisions contained therein. Neither Agent nor any Lenders shall have any obligation to provide a copy of any Co-Lender Agreement to any Borrower Related Party or any Affiliate of any Borrower Related Party or to disclose to any Borrower Related Party or any Affiliate of any Borrower Related Party the contents of any Co-Lender Agreement. The Credit Party’s obligations under the Loan Documents are and will be independent of any Co-Lender Agreement and shall remain unmodified by the provisions thereof (although Borrower acknowledges that with respect to certain approvals, calculations and other decisions hereunder, any Co-Lender Agreement may (subject to the terms set forth in Section 9.12(b)) require Agent to consult with or receive the approval of one or more Lenders prior to providing its own approval or determination regarding the same).
    (b)    Agent agrees that in the event that Agent enters into a Co-Lender Agreement after the date hereof, such Co-Lender Agreement shall not include any (I) Unanimous Decisions (as defined below) other than those listed on Exhibit E attached hereto (although, for the avoidance of doubt, (a) not all of the decisions specified on Exhibit E attached hereto will necessarily be unanimous decisions in such Co-Lender Agreement (and some may be Required Lender Decisions (as defined below)) at any given time, and (b) the terminology of the decisions set forth in any such Co-Lender Agreement may differ from the precise terminology set forth on Exhibit E attached hereto, and, in particular, there may exist certain exceptions to any Unanimous Decision which renders such a decision not to be a Unanimous Decision) or (II) Required Lender Decisions other than those listed on Exhibit F attached hereto (although, for the avoidance of doubt, (a) not all of the decisions specified on Exhibit F attached hereto will
164
49289660

necessarily be Required Lender Decisions in such Co-Lender Agreement, and (b) the terminology of the decisions set forth in such Co-Lender Agreement may differ from the precise terminology set forth on Exhibit F attached hereto, and, in particular, there may exist certain exceptions to any Required Lender Decision which renders such a decision not to be a Required Lender Decision). Borrowers acknowledge and agree that upon not less than five (5) Business Days’ prior written notice to Borrowers (an “Update Notice”), but without any consent right of Borrowers thereto, in connection with the execution of any Co-Lender Agreement, Lenders and Agent may update such Exhibit F to amend, modify, supplement, limit, caveat, add, and/or delete any Required Lender Decision (it being agreed that, from and after the expiration of such five (5) Business Day period, the then current Exhibit F shall be deemed deleted in full as an exhibit to this Agreement and replaced in full with the new Exhibit F, included in the Update Notice).
13.Future Funding Obligations. Notwithstanding anything to the contrary contained herein, the parties acknowledge that the Loan may be severed into one or more component notes where one Lender (the “Future Funding Lender”) retains the obligations of the Lender hereunder to fund any Advances (the “Future Funding Obligations”). The Future Funding Obligations will be solely the obligation of Future Funding Lender and will not be transferred or assigned to any subsequent holder of the applicable Note(s) (the “Holder”), including the Servicer and any trust or trustee or substituted or successor trustee established in connection with any Secondary Market Transaction. No Holder other than Future Funding Lender shall have any liability with respect to the Future Funding Obligations.
14.Modifications to Article IX. Borrowers, Agent and Lenders acknowledge and agree that the provisions of this Article IX (other than Section 9.12(b) and the third sentence of Section 9.1(a)) solely govern the relationship among Lenders and Agent and do not alter or otherwise modify the provisions of this Agreement applicable to Borrowers or otherwise apply to Borrowers. The provisions of this Article IX may be modified without Borrowers’ consent so long as such modifications do not alter any of Borrowers’ rights or obligations under this Agreement or any of the other Loan Documents or otherwise alter the economic terms of the Loan or the Loan Documents in any manner.
15.Successor Agents. Agent may resign as Agent under the Loan Documents upon notice to Lenders and Borrowers. If Agent shall resign, then Lender shall appoint a successor Agent. The term 「Agent」 shall mean each such successor Agent, effective upon its appointment, and the former Agent’s rights, powers and duties as Agent shall be terminated, without any other or further act or deed on the part of such former Agent or any of the parties to this Agreement or any of the Loan Documents or successors thereto. After any retiring Agent’s resignation hereunder as Agent, the provisions of the Loan Documents shall inure to its benefit as to any actions taken or omitted to be taken by it while it was an Agent under the Loan Documents. In no event shall there be more than one Agent hereunder.
16.Limitation on Agent’s Liability. No syndication agents, arranger, or book running manager, in such capacities, shall have any right, power, obligation, liability, responsibility or duty under this Agreement.
Article X
GENERAL CONDITIONS
1.Indemnity.
165
49289660

(a)Borrowers hereby indemnify and agree to defend, protect and hold harmless Agent and Lenders and their respective affiliates, participants, directors, officers, agents, employees and 「controlling persons」 (as defined under federal securities law) (each, an “Indemnified Party”) from and against any and all actual losses, liabilities, obligations, charges, claims, damages (excluding consequential, special, punitive and exemplary damages, except to the extent asserted against Agent or any Lender by any third party or paid by Agent or any Lender by any third party), penalties, causes of action, costs and expenses (including reasonable attorneys’ fees and disbursements) of any kind or nature (except to the extent of any claim arising from the gross negligence or willful misconduct of any Indemnified Party), in connection with this Agreement or any of the other Loan Documents, the consummation of the transactions contemplated herein or therein, or the acquisition, development, construction, management, financing maintenance, sale, marketing, leasing, use, operation, or occupancy of the Mortgaged Property, including the following:
(i)any accident, injury to or death of Persons or loss of or damage to property occurring on or about the Mortgaged Property or any part thereof, or the adjoining sidewalks, curbs, vaults and vault space, if any, and streets and ways;
(ii)any design, construction, operation, use, nonuse or condition of the Mortgaged Property or any part thereof, or the adjoining sidewalks, curbs, vaults and vault space, if any, and streets and ways, including claims or penalties arising from violation of any Legal Requirement or Insurance Requirement, as well as any claim based on any patent or latent defect, whether or not discoverable by Agent or any Lender, and any claim as to which the insurance is inadequate;
(iii)any performance of or failure to perform any labor or services or furnishing of or failure to furnish any materials or other property in respect of the Mortgaged Property or any part thereof;
(iv)any negligence or tortious act or omission on the part of any Borrower, any other Credit Party, or any Affiliate of the forgoing Persons or any of its respective agents, contractors, servants, employees, Lessees, lessees, sublessees, licensees, guests or invitees;
(v)any other relationship that has arisen or may arise between or among Agent, Lenders, Borrowers, any other Credit Party, any third party with respect to the Mortgaged Property or any of the foregoing, as a result of the execution and delivery of the Note, this Agreement or the other Loan Documents, or any other action contemplated hereby, thereby or by any other document executed in connection with the Loan; and
(vi)any claim, action or other proceeding brought by or on behalf of any other Person against Agent or any Lender as the holder of, or by reason of (y) its interest in, any sum deposited or paid hereunder or in connection herewith, any insurance proceeds, any Awards or other amounts applied to the Obligations or (z) Borrowers acquiring the Mortgaged Property (or any portion thereof);
(b)If any action or proceeding shall be commenced or taken (including an action to foreclose any Security Document, collect the Obligations or enforce Agent’s rights under the Note or the other Loan Documents) by Agent or any other Person, in which action or proceeding Agent is involved or is made a party by reason of the execution and/or delivery of the Note, this Agreement, or any other Loan Documents or in which it becomes necessary to enforce, defend or uphold the Lien on the Mortgaged Property pursuant to this Agreement or the other Loan Documents or Agent’s rights under the Note or any other Loan Documents, all actual
166
49289660

sums paid by Agent for the expense of any such action or litigation shall be paid by Borrower to Agent five (5) days after written demand therefore. In the event the Mortgaged Property, or any part thereof, shall be advertised for foreclosure sale and not sold, Borrowers shall pay all costs in connection therewith, including reasonable attorneys’ fees and disbursements and advertising costs.
(c)Borrowers will hold Agent and each Lender harmless against any and all liability with respect to any mortgage recording or intangible personal property tax or similar imposition now or hereafter in effect, to the extent that the same may be payable by Agent or any Lender with respect to this Agreement, any Note or any other Loan Document
2.No Waivers. No failure or delay on the part of Agent or any Lender in exercising any right, power or remedy hereunder or under or in connection with this Agreement or the other Loan Documents or to insist upon the strict performance of any term of this Agreement or any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy under or in connection with this Agreement or any other Loan Document.
3.Agent’s Review. Observation, inspection and approvals by or on behalf of Agent shall impose no responsibility or liability of any nature whatsoever on Agent, any Lender and no Person shall, under any circumstances, be entitled to rely upon such observations, inspections and approvals by Agent for any reason, except that the condition or requirement that such observation or inspection be done or approval be obtained may be considered by Borrowers as having been satisfied once such observation or inspection is performed or approval is obtained, as the case may be.
4.Submission of Evidence. Any condition of this Agreement which requires the submission of evidence of the existence or non-existence of a specified fact or facts implies as a condition the existence or non-existence, as the case may be, of such fact or facts, and Agent shall, at all times, be free to independently establish to its satisfaction such existence or non-existence.
5.Agent and Lenders Sole Beneficiaries. No Person other than Agent and Lenders shall be deemed to be beneficiary of the terms, provisions, covenants and other conditions of this Agreement and the other Loan Documents, any or all of which may be freely waived, in whole or in part, by Agent at any time if Agent deems it advisable or desirable to do so.
6.Third Party Beneficiaries. No Person dealing with Borrowers shall be, nor shall any of them be deemed to be, third party beneficiaries of this Agreement and each such other Person in question shall look to Borrowers as its sole source of recovery if not paid and they may not claim against Agent or Lenders under any circumstances.
7.Entire Agreement. This Agreement and the other Loan Documents embody the entire agreement and understanding among Borrowers, the other Credit Parties, Agent and Lenders with respect to the Loan and supersede and cancel all prior loan applications, expressions of interest, commitments, agreements and understandings, whether oral or written, relating to the subject matter hereof, except as specifically agreed in writing to the contrary.
8.Assignment. No Borrower may assign, transfer or otherwise convey this Agreement or any other Loan Document, in whole or in part, nor all or any portion of the Loan to be made hereunder nor any interest therein and any such assignment, transfer or conveyance shall be null and void.
167
49289660

9.Further Assurances; Filing of Financing Statements. Borrowers shall promptly execute and acknowledge (or cause to be executed and acknowledged), and deliver all documents, instruments and agreements, and take all actions, reasonably required by Agent from time to time in order to confirm the rights created or intended to be created under this Agreement and the other Loan Documents and any security interest created or purported to be created hereunder or thereunder, to protect the validity, priority and enforceability of this Agreement and the other Loan Documents, to subject to the Loan Documents any property of Borrowers intended by the terms of any one or more of the Loan Documents to be encumbered by the Loan Documents, or otherwise carry out the intent and purposes of the Loan Documents and the transactions contemplated thereunder, provided that the foregoing shall not impose any additional material liability or obligations on, nor materially reduce the rights or remedies of, any Borrower or any Guarantor, or change the timing of payments of interest or principal. Borrowers hereby agree that, without notice to or the consent of Borrowers, Agent may file with the appropriate public officials such financing statements or similar documents as are or may become necessary to perfect and continue the perfection of the security interest granted by any Security Document.
10.Cumulative Remedies. The remedies in this Agreement and the other Loan Documents herein are cumulative and not exclusive of any remedies available at law or equity or in any other agreement, document or instrument.
11.Amendments, Waivers, Consents and Approvals. No failure or delay of Agent in exercising any power or right hereunder or to demand payment for any sums due pursuant to this Agreement or any other Loan Document, shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. No waiver of any provision of this Agreement or in any of the other Loan Documents or consent to any departure by Borrowers or any other Person therefrom shall in any event be effective unless signed in writing by Agent in accordance with this Agreement (including Sections 9.10 and 9.11), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Consents, approvals and waivers granted by Agent for any matters covered under this Agreement or any Loan Document shall not be effective unless signed in writing by Agent hereof in accordance with this Agreement (including Sections 9.10 and 9.11), and such consents, approvals and waivers shall be narrowly construed to cover only the parties and facts identified in any such consent, approval or waiver. No notice or demand on Borrowers or any other Person in any case shall entitle Borrowers or such Person to any other or further notice or demand in similar or other circumstances. Except as set forth in Section 9.1, no Modification or termination of any provision of this Agreement shall be effective unless in writing and signed by Borrowers and Agent hereof.
12.Notices. All notices, certificates, demands, requests, approvals, consents, waivers and other communications (any of the foregoing, a “Notice”) provided for herein shall be in writing and (a) mailed (registered or certified mail, return receipt requested, and postage prepaid), (b) hand-delivered, with signed receipt, (c) sent by nationally-recognized overnight courier, or (d) sent as a .pdf attachment to an e-mail (provided that any Notice sent by e-mail is also delivered by one of the other means for Notices set forth in this Section 10.12 on the Business Day immediately following the date such e-mail was sent), in each case, as follows:
If to Borrowers, to:

168
49289660

c/o CIM Group, LLC
4700 Wilshire Boulevard
Los Angeles, California 90010
Attention: Nicholas Breyer, Greg Rollman and Alex Rieger

with copies to:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019 -6064
Attention: Harris B. Freidus
Email: hfreidus@paulweiss.com 

and

c/o CIM Group, LLC
4700 Wilshire Boulevard
Los Angeles, California 90010
Attention: General Counsel

If to Agent, to:

Deutsche Bank AG, New York Branch
1 Columbus Circle, 15th Floor
New York, New York 10019
Attention: Mrinal Dansingani
Email: mrinal.dansingani@db.com

Deutsche Bank AG, New York Branch
1 Columbus Circle, 15th Floor
New York, New York 10019
Attention: Jordan Solomon
Email: jordan.solomon@db.com
169
49289660

with a copy to:     
King & Spalding LLP
1185 Avenue of the Americas
New York, New York 10036
Attention: Christine O’Connell, Esq.
Email: ckoconnell@kslaw.com

and
Hanover Street Capital, LLC
250 West 57th Street, Suite 2200
New York, NY 10107
Attention: Tom Deja & Bryan Whalen
Email: Tom.Deja@hanoverstcap.com Bryan.Whalen@hanoverstcap.com

If to a Lender:

At the address set forth next to such
Lender’s signature on the signature
page hereto.
or to such other address with respect to any party, as such party shall notify the other parties in writing. All such Notices given pursuant to this Section 10.12 shall be effective when received (or delivery is refused) at the address specified as aforesaid.
13.Binding Effect. This Agreement shall be binding upon and inure to the benefit of Agent and Lenders and their respective permitted successors and assigns and each Borrower and its permitted successors and assigns.
14.Severability of Provisions. Any provision of this Agreement which is prohibited or unenforceable in the State of New York or in any other jurisdiction in the United States shall be, as to the State of New York or such other jurisdiction in the United States, ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.
15.Governing Law and Consent to Jurisdiction.
(a)THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY AGENT AND LENDERS AND ACCEPTED BY BORROWERS IN THE STATE OF NEW YORK, AND THE PROCEEDS OF THE NOTE DELIVERED PURSUANT HERETO WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN
170
49289660

SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL TIMES THE PROVISIONS FOR THE CREATION, PERFECTION AND ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS CREATED PURSUANT TO THE MORTGAGE AND THE ASSIGNMENT OF LEASES SHALL BE GOVERNED BY, AND CONSTRUED ACCORDING TO, THE LAW OF THE STATE IN WHICH THE PROPERTY IS LOCATED, IT BEING UNDERSTOOD THAT, TO THE FULLEST EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE CONSTRUCTION, VALIDITY AND ENFORCEABILITY OF ALL LOAN DOCUMENTS AND ALL OF THE OBLIGATIONS ARISING HEREUNDER OR THEREUNDER. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF LENDERS, AGENT AND BORROWERS HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES AND RELINQUISHES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT AND THE NOTE, AND THIS AGREEMENT AND THE NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(b)ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST AGENT, ANY LENDER OR BORROWER ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE INSTITUTED IN ANY FEDERAL DISTRICT COURT OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND EACH OF LENDERS, AGENT AND BORROWERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTIONS WHICH SUCH PARTY MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND EACH OF LENDERS, AGENT AND BORROWERS HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. BORROWERS AGREE THAT SERVICE OF PROCESS UPON BORROWERS AT THE ADDRESS FOR BORROWERS SET FORTH HEREIN AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO BORROWERS IN THE MANNER PROVIDED HEREIN SHALL CONCLUSIVELY BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWERS IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWERS (I) SHALL GIVE PROMPT NOTICE TO AGENT OF ANY CHANGE IN THE ADDRESS FOR BORROWERS SET FORTH HEREIN, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE AN AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE AN AUTHORIZED AGENT IF BORROWERS CEASE TO HAVE AN OFFICE IN NEW YORK, NEW YORK. NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF AGENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST BORROWERS IN ANY OTHER JURISDICTION TO THE EXTENT NECESSARY TO EXERCISE ALL OF AGENT’S RIGHTS AND REMEDIES HEREUNDER.
16.Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
171
49289660

FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
17.No Joint Venture. Neither Borrowers nor any other Credit Party is or shall be deemed to be a joint venturer, partner, member, Lessee in common or joint Lessee with, or an agent of Agent or Lenders for any purpose. Neither Agent nor Lenders shall be deemed to be in privity of contract with any Person providing services with respect to the operation, marketing and sale of the Mortgaged Property or any part thereof unless and until and except to the extent that Agent shall affirmatively act to establish any such privity, or in the exercise of Agent’s remedies pursuant to the Mortgage or any other Loan Document.
18.Determinations and Consents of Agent and Lenders. Unless expressly provided to the contrary in any particular instance, any determination, election or judgment made or any consent, approval or waiver given by Agent or Lender pursuant to this Agreement or any other Loan Document shall be made or given, as the case may be, in Agent’s or such Lender’s sole and absolute discretion, whether or not the applicable provision of this Agreement or such other Loan Document expressly so provides. In making any such determination, election or judgment or in providing or deciding not to provide any such consent, approval or waiver, Agent and each Lender shall be entitled to rely, to the extent Agent or such Lender so elects, in whole or in part on the advice of counsel (including counsel for Borrowers or any other Credit Party), independent public accountants, engineers, architects, construction consultant and other experts selected by Agent or such Lender. In any instance where a Loan Document provides that Agent shall not unreasonably withhold its consent or approval, such standard shall apply only in the event that no Default or Event of Default is continuing, and during the period that a Default or Event of Default is continuing, Agent may withhold such consent or approval in its sole and absolute discretion (and at such time as all pending Defaults and Events of Defaults have been cured in accordance with the applicable Loan Documents or waived in writing by Lender, such standard of consent and approval shall revert back to reasonableness).
19.Headings, Etc. The headings and captions of various Sections of this Agreement have been inserted for convenience only and are not to be construed as defining, modifying, limiting or amplifying, in any way, the scope or intent of the provisions hereof.
20.Incorporation by Reference. Borrowers agree that the Note and the other Loan Documents shall be made subject to all the terms, covenants, conditions, obligations, stipulations and agreements contained in this Agreement to the same extent and effect as if fully set forth in
172
49289660

and made a part of the Note and the other Loan Documents. In the event of a conflict between any of the Loan Documents and the provisions of this Agreement, this Agreement shall control.
21.Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, and it shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart.
22.IntraLinks. If Agent is required or elects to send information to Lender(s), Agent may elect to send such information by IntraLinks (or similar electronic distribution system), but this provision shall not be applicable to default notices and/or matters involving a deemed consent provision.
23.Survival. Without prejudice to the survival of any other agreements contained herein, obligations for taxes, costs, indemnification, reimbursements, damages and other contingent obligations (including pursuant to Sections 2.11, 2.13, 5.15 and 10.1) shall survive the repayment in full of the Loan.
24.Damages. Neither Agent nor any Lender nor any agent of any of them shall be liable to any Borrower or any of its Affiliates for punitive, exemplary or consequential damages arising from any breach of contract, tort or other wrong relating to the establishment, administration or collection of the Obligation or as a result of any transaction contemplated in any of the Loan Documents.
25.Preferences. Except to the extent otherwise provided in any Loan Document, Lenders and Agent shall have the continuing and exclusive right to apply or reverse and reapply any and all payments by Borrowers to any portion of the Obligations. To the extent that any of the Credit Parties makes a payment or payments to Agent or Lenders, or Agent or Lenders enforce the lien of the Mortgage or other Loan Documents or exercise their rights of set-off (at all times in accordance with Section 7.8 above), and such payment or payments or the proceeds of such enforcement or set-off or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by Agent in its discretion) to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law, equitable cause, or otherwise, then (1) to the extent of such recovery the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or set-off had not occurred, and (2) each Lender severally agrees to pay to Agent upon demand its ratable share of the total amount so recovered from or repaid by Agent.
26.Acknowledgement and Consent to Bail-In of EEA Financial Institutions.
(a)Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among the respective parties thereto, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(i)the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
(ii)the effects of any Bail-In Action on any such liability, including, if applicable:
173
49289660

(A)a reduction in full or in part or cancellation of any such liability;
(B)a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(C)the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
(b)As used in this Section 10.26 the following terms have the following meanings ascribed thereto: (i) “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution; (ii)”Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule; (iii) “EEA Financial Institution” means (x) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority; (y) any entity established in an EEA Member Country which is a parent of an institution described in clause (x) of this definition, or (z) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (x) or (y) of this definition and is subject to consolidated supervision with its parent; (iv) “EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway or any other member state of the European Economic Area; provided, however, from and after any such time as the United Kingdom ceases to be a member state of the European Union, 「EEA Member Country」 shall also continue to include the United Kingdom; (v) “EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution; (vi) “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time; and (vii) “Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
27.Exculpation. Notwithstanding anything to the contrary set forth in the Loan Documents, the Loan shall be fully recourse to Borrowers. Moreover, all of the terms and provisions of this Agreement and the other Loan Documents to which Borrowers are a party are obligations of Borrowers and not restricted by any limitation on personal liability; provided, however, that (a) if any Borrower is a limited partnership, in no event shall any general partner, limited partner, officer, director, employee, agent or direct or indirect owner of Borrower have any personal liability for the obligations of such Borrower hereunder, (b) if any Borrower is a limited liability company in no event shall any member, manager, officer, director, employee, agent or direct or indirect owner of such Borrower have any personal liability for the obligations of such Borrower hereunder, or (c) if any Borrower is a corporation, in no event shall any officer, director, employee, agent, direct or indirect owner, shareholder or authorized signatory of such
174
49289660

Borrower have any personal liability for the obligations and liabilities of such Borrower hereunder; provided, further however, that in no way shall the foregoing apply to or limit any liabilities or obligations of any Guarantor under any Guaranty.
28.Brokers and Financial Advisors. Borrowers hereby represent that, except for Cushman & Wakefield (“Broker”), they have dealt with no financial advisors, brokers, underwriters, placement agents, agents or finders in connection with the transactions contemplated by this Agreement. Borrowers shall indemnify, defend and hold Agent and each Lender harmless from and against any and all claims, liabilities, losses, costs and expenses of any kind (including Agent’s and each Lender’s reasonable attorneys’ fees and expenses) in any way relating to or arising out of a claim by any Person (including Broker) that such Person acted on behalf of Borrowers or Agent or any Lender in connection with the transactions contemplated herein. The provisions of this Section 10.28 shall survive the expiration and termination of this Agreement and the payment of the Obligations.
29.Servicer.
(a)At the option of Agent, the Loan may be serviced by one or multiple servicers, special servicers and/or trustees (any such servicers, special servicers and trustees, together with their agent’s, nominees or designees, are collectively referred to as “Servicer”) selected by Agent and Agent may delegate all or any portion of its responsibilities under this Agreement and the other Loan Documents to the Servicer pursuant to a servicing agreement between Agent and Servicer. Servicer may, at any time, delegate all or any portion of its responsibilities for the servicing and administration of the Loan to a sub-servicer or sub-servicers. Borrowers shall be responsible for any fees, costs and expenses of Servicer, but only to the extent such fees, costs and expenses would otherwise be payable by Borrowers if incurred by Agent or Lender hereunder or are covered by the further provisions of this Section 10.29(a). Agent and Borrowers agree that Hanover Street Capital, LLC shall be the initial Servicer hereunder. Borrowers agrees that Servicer shall be paid an annual fee of $30,000, payable monthly (in equal monthly installments) on each Payment Date (the “Servicing Fee”), in accordance with Section 4.4 hereof. Notwithstanding any collection of the Servicing Fee by Agent on behalf of Servicer, the Servicing Fee will be deemed to have been paid directly to Servicer.
(b)Subject to Section 10.29(a), Borrowers shall pay all of the fees and out-of-pocket expenses of the Servicer and any reasonable third-party fees and expenses in connection with the Loan, including any prepayments, releases of the Mortgaged Property, approvals under the Loan Documents requested by Borrowers, other requests under the Loan, assumption of Borrowers’ obligations or modification of the Loan, as well as any fees and out-of-pocket expenses in connection with the special servicing or work-out of the Loan or enforcement of the Loan Documents, including, special servicing fees, operating or trust advisor fees (if the Loan is a specially serviced loan or in connection with a workout), work-out fees, liquidation fees, attorney’s fees and expenses and other fees and out-of-pocket expenses in connection with the modification or restructuring of the Loan. All amounts payable to Agent or Servicer in exercising its rights under this Section 10.29 (including, but not limited to, disbursements, advances and reasonable legal expenses incurred in connection therewith), shall be payable within five (5) days of demand therefor, secured by this Agreement and interest thereon shall accrue at the Default Rate from the date due.
30.Creation of Security Interest. Notwithstanding any other provision set forth in this Agreement, the Note, the Mortgage or any of the other Loan Documents, Agent or any Lender may at any time create a security interest in all or any portion of its rights under this Agreement, the Note, the Mortgage and any other Loan Document (including the advances owing to it) in favor of (i) any Federal Reserve Bank, any Federal Home Loan Bank or the
175
49289660

central reserve bank or similar authority of any country to secure any obligation of Lender to such bank or similar authority (a “Central Bank Pledge”) or (ii) the trustee, administrator or receiver (or their respective nominees, collateral agents or collateral trustees) of a mortgage pool securing covered mortgage bonds issued by a German mortgage bank, or any other Person permitted to issue covered mortgage bonds, under German Pfandbrief legislation, as such legislation may be amended and in effect from time to time, on any substitute or successor legislation (a “Pfandbrief Pledge”). In the event that the interest of Agent and/or any Lender that is assigned in connection with a Central Bank Pledge is foreclosed upon and transferred to the pledge thereof, Agent or such Lender, as applicable, shall have no further liability hereunder with respect to the interest that was the subject of such transfer and the assignee shall be Agent or such Lender, as applicable with respect to such interest. Neither Agent nor any Lender shall be required to notify Borrowers of any Central Bank Pledge or Pfandbrief Pledge. Borrowers agree to execute, within fifteen (15) Business Days after request therefor is made by Agent or any Lender, any documents or any amendments, amendments and restatements, and/or modifications to any Loan Documents and/or additional documents (including, without limitation, amended, amended and restated, modified and/or additional promissory notes) and/or estoppel certificates reasonably requested by Agent and/or such Lender in order to make the Loan Documents eligible under German pfandbrief legislation; provided, however, that Borrowers shall not be required to make any Prohibited Changes.
31.Publicity. All news releases, publicity or advertising by any Borrower or its Affiliates through any media intended to reach the general public which refers to the Loan Documents or the financing evidenced by the Loan Documents, to Agent, Lenders, any Affiliate of Agent, any Affiliate of any Lender shall be subject to the prior written approval of Agent and/or such Lender, such approval not to be unreasonably withheld. All news releases, publicity or advertising by Agent and/or any Lender or any of their Affiliates through any media intended to reach the general public which refers to the Loan Documents or the financing evidenced by the Loan Documents, to any Borrower or Guarantor or any Affiliate of any Borrower or Guarantor shall be subject to the prior written approval of Borrowers, such approval not to be unreasonably withheld; provided, however that the foregoing shall in no way limit Agent’s and each Lender’s rights pursuant to Article XIII. Notwithstanding the foregoing (and in no way limiting Agent’s and each Lender’s rights under Article XIII), Borrowers authorize Agent and each Lender to issue press releases, advertisements and other promotional materials in connection with Agent’s and each Lenders’ own promotional and marketing activities, including in connection with a Secondary Market Transaction, and such materials may describe the Loan in general terms or in detail and Agent’s and Lenders’ participation therein.
32.Joint and Several Liability; Suretyship Waivers. Each Borrower acknowledges that Lender has made the Loan to each Borrower upon the security of their collective interest in the Property and in reliance upon the aggregate of the Property taken together being of greater value as collateral security than the sum of each individual Borrower’s interest in the Property.
(a)As more specifically set forth in this Section 10.32, the waivers set forth in this Section 10.32 are intended only to apply to rights or defenses which any individual Borrower may have or assert in the event that such individual Borrower is held to be, or asserts that such individual Borrower is, a surety of any other individual Borrower. Without limiting any other provision of this Agreement or any other Loan Document, nothing in this Section 10.32 shall be deemed a waiver by Borrower or any individual Borrower, in its capacity as a debtor or obligor (as opposed to any capacity as a surety), of any of its rights, remedies and defenses otherwise afforded to it as a debtor or obligor (as opposed to a surety) under applicable law where the debt is secured by real property.
(b)Each individual Borrower acknowledges and agrees that (A) the obligations and liability of each individual Borrower under this Agreement and the other Loan
176
49289660

Documents to which such individual Borrower is a party are joint and several and (B) each of the individual Borrowers and Agent, on behalf of the Lender, do not intend that any individual Borrower be treated or held to be a surety or guarantor of the obligations of any other individual Borrower under the Loan Documents. Notwithstanding the foregoing, if and to the extent that any individual Borrower may be treated as or deemed to be a surety or held to have any of the rights, remedies or defense of a surety for the obligations of any other individual Borrower under the Loan Documents, then each individual Borrower, to the fullest extent permitted by law, hereby knowingly, voluntarily and irrevocably waives and agrees not to assert or take advantage of any such rights, remedies or defenses.
(c)Without limiting the generality of the foregoing provisions, the validity, priority and enforceability of the Mortgage shall not be impaired or otherwise affected by (A) any failure of any individual Borrower (should such individual Borrower, in its individual capacity, be deemed to be a surety) to receive notice of any default in the payment or performance of any indebtedness or other obligations of any other individual Borrower (in its individual capacity as an obligor under the Loan Documents) that are secured by the Mortgage; (B) any limitation on the personal liability of any individual Borrower (in its individual capacity as an obligor under the Loan Documents) for any indebtedness or obligation secured by the Mortgage; (C) any failure of any individual Borrower (should such individual Borrower, in its individual capacity, be deemed to be a surety) to receive notice of, or consent to, any extension, alteration, impairment or suspension of any indebtedness or other obligations that are secured by the Mortgage; (D) any failure of any individual Borrower (should such individual Borrower, in its individual capacity, be deemed to be a surety) to receive notice of, or consent to, the release by Agent, on behalf of the Lender, of any other security for, or guaranty of, any indebtedness or obligations that are secured by the Mortgage; (E) any failure of Agent to enforce any other right or remedy, or to resort to any other security or guaranty, before enforcing Agent’s foreclosure, receivership and other remedies under the Mortgage; and (F) any election of remedies by Agent, on behalf of the Lender, that impairs or destroys any right or remedy of any individual Borrower (should such individual Borrower, in its individual capacity, be deemed to be a surety) against any other individual Borrower (in its individual capacity treated as an obligor under the Loan Documents) including any destruction of the right of any individual Borrower (should such individual Borrower, in its individual capacity, be deemed to be a surety) to seek reimbursement from any other individual Borrower (in its individual capacity treated as an obligor under the Loan Documents) based on the principle of equitable subrogation as a result of Agent’s election to foreclose under the Mortgage by a nonjudicial trustee’s sale.
(d)Each individual Borrower (should such individual Borrower be deemed to be such, in its individual capacity as a surety) hereby further knowingly, voluntarily and irrevocably waives (A) any claim against any other individual Borrower (in its individual capacity treated as an obligor under the Loan Documents) including any equitable claim for reimbursement based on any loss suffered by such individual Borrower (should such individual Borrower, in its individual capacity, be deemed to be a surety) as a result of Agent’s enforcement of its remedies under the Mortgage; and (B) any right to receive, resort to, or in any way have the benefit of any other security or guaranty held by Agent, on behalf of the Lender.
(e)The continuing validity and enforceability of the covenants and waivers of each individual Borrower (should such individual Borrower, in its individual capacity, be deemed to be a surety) in this Section 10.32 shall not be impaired or otherwise affected by any election of Agent, in its discretion, to give any particular notice to such individual Borrower (should such individual Borrower, in its individual capacity, be deemed to be a surety) or to solicit any particular consent of such individual Borrower (should such individual Borrower, in its individual capacity, be deemed to be a surety) that Agent is not obligated to give or solicit by reason of the provisions of this Section 10.32.
177
49289660

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective duly authorized officers as of the day and year first above written.
BORROWERS:
CIM/J STREET HOTEL SACRAMENTO OWNER, LLC
CIM/J STREET HOTEL SACRAMENTO ML, LLC
CIM/J STREET GARAGE SACRAMENTO OWNER, LLC
each, a Delaware limited liability company


By: /s/ David Thompson
Name: David Thompson
Title: Vice President & Chief Financial Officer


[Signature Page to Loan Agreement (Sheraton Grand Sacramento)]

LENDER:
DEUTSCHE BANK AG, NEW YORK BRANCH, as initial Lender
By: /s/ Jon Tilli
    Name: Jon Tilli
    Title: Director
By: /s/ Christopher Harris
    Name: Christopher Harris
    Title: Director
Commitment: $92,200,000.00



[Signature Page to Loan Agreement (Sheraton Grand Sacramento)]

AGENT:
DEUTSCHE BANK AG, NEW YORK BRANCH
By: /s/ Jon Tilli
    Name: Jon Tilli
    Title: Director
By: /s/ Christopher Harris
    Name: Christopher Harris
    Title: Director



[Signature Page to Loan Agreement (Sheraton Grand Sacramento)]

EXHIBIT A-1
LEGAL DESCRIPTION OF HOTEL PROPERTY
 
Real property in the City of Sacramento, County of Sacramento, State of California, described as follows:
PARCEL ONE:

LOTS 3, 4, 5 AND THE EAST 19.50 FEET OF LOT 2 IN THE BLOCK BOUNDED BY 12TH AND 13TH STREETS AND "J" AND "K" STREETS IN THE CITY OF SACRAMENTO, ACCORDING TO THE OFFICIAL MAP OF SAID CITY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

BEGINNING AT A POINT ON THE NORTHERLY LINE OF SAID LOT 2 FROM WHICH THE NORTHEAST CORNER OF SAID LOT 2, BEARS SOUTH 71° 26' 27" EAST 19.50 FEET; THENCE ALONG THE NORTHERLY LINE OF LOTS 2, 3, 4 AND 5 SOUTH 71° 26' 27" EAST 260.76 FEET TO THE NORTHEAST CORNER OF SAID LOT 5; THENCE ALONG THE EASTERLY LINE OF SAID LOT 5 SOUTH 18° 37' 03" WEST 160.94 FEET TO THE SOUTHEAST CORNER OF SAID LOT 5; THENCE ALONG THE SOUTHERLY LINE OF LOTS 5, 4, 3, AND 2 NORTH 71° 28' 12" WEST 260.63 FEET TO A POINT THAT BEARS NORTH 71° 28' 12" WEST 19.50 FEET FROM THE SOUTHEAST CORNER OF SAID LOT 2; THENCE NORTH 18° 34' 11" EAST 161.07 FEET TO THE POINT OF BEGINNING.

THIS LEGAL DESCRIPTION IS PURSUANT TO THE CERTIFICATE OF COMPLIANCE FOR LOT MERGER RECORDED DECEMBER 13, 1999, BOOK 19991213, PAGE 1101, OF OFFICIAL RECORDS.

PARCEL TWO:

PARKING RIGHTS AS GRANTED IN THAT CERTAIN PARKING RIGHTS AGREEMENT BY AND BETWEEN COM/K STREET GARAGE SACRAMENTO, L.P., A CALIFORNIA LIMITED PARTNERSHIP AND CIM/J STREET HOTEL SACRAMENTO, L.P., A CALIFORNIA LIMITED PARTNERSHIP RECORDED SEPTEMBER 3, 2019 IN BOOK 20190903, PAGE 679, OFFICIAL RECORDS.
APN:  006-0111-018-0000 


49289660v20

EXHIBIT A-2
LEGAL DESCRIPTION OF GARAGE PROPERTY
Real property in the City of Sacramento, County of sacramento, State of California, described as follows:
Lots 3, 4, 5, 6, 7 and 8 in the block bounded by 12th and 13th, "I" AND "J" Streets of the City of Sacramento, according to the Official Plat thereof; together with the North 1/2 of the abandoned alley adjoining said Lots 3, 4 and 5 and the South 1/2 of the abandoned alley adjoining said Lots 6, 7 and 8.

Together with that portion of vacated alley, pursuant to that certain document entitled Ordinance No. 3445 Fourth Series, recorded September 13, 1974 as Book 740913, Page 739 of official records.
APN:  006-0052-020 and 006-0052-021 




49289660v20

EXHIBIT B
SECONDARY MARKET TRANSACTION INFORMATION
(A)    Any proposed program for the renovation, improvement or development of the Property, or any part thereof, including the estimated cost thereof and the method of financing to be used.
(B)    The general competitive conditions to which the Mortgaged Property is or may be subject.
(C)    Management of the Mortgaged Property.
(D)    Occupancy rate expressed as a percentage for each of the last five years.
(E)    Principal business, occupations and professions carried on in, or from the Mortgaged Property.
(F)    Number of Lessees occupying ten percent (10%) or more of the total rentable square footage of the Mortgaged Property and principal nature of business of such Lessee, and the principal provisions of the leases with those Lessees including, but not limited to: rental per annum, expiration date, and renewal options.
(G)    The average effective annual rental per square foot or unit for each of the last three years prior to the date of filing.
(H)    Schedule of the lease expirations for each of the ten years starting with the year in which the registration statement is filed (or the year in which the prospectus supplement is dated, as applicable), stating:
(1)    The number of Lessees whose leases will expire.
(2)    The total area in square feet covered by such leases.
(3)    The annual rental represented by such leases.
(4)    The percentage of gross annual rental represented by such leases.






EXHIBIT C
RESERVED







EXHIBIT D
FORM OF DATE DOWN ENDORSEMENT

image_0a.jpg

1


EXHIBIT E
List of Unanimous Decisions

(i)forgive, increase or reduce the principal amount of the Loan, or reduce the interest rate under any Note;
(ii)forgive or waive any accrued interest, fee, prepayment premium or any other amount due and owing with respect to any Note;
(iii)extend or waive or otherwise change (A) the Maturity Date of the Loan or (B) any stated payment date for principal of or interest on the Loan;
(iv)release any Borrower Party from liability under the Loan Documents (except that no such consent shall be required, and Agent is hereby authorized, to release the applicable Borrower Parties, (x) upon payment of the Obligations under the Loan in full in accordance with the terms of the Loan Documents or (y) as otherwise provided under the terms of the Loan Documents;
(v)release, substitute or exchange any material portion of the collateral given as security for the Loan (except that no such consent shall be required, and Agent is hereby authorized to release, substitute or exchange any Lien covering the collateral under the Mortgage upon payment of the Obligations in full in accordance with the terms of the Loan Documents);
(vi)subordinate the Lien of any of the Loan Documents to any mortgage or other monetary encumbrance; provided, however, Agent may subordinate such Lien if the subordination is to a lien or encumbrance in favor of the Agent for the benefit of the Lenders;
(vii)modify any of the Unanimous Decisions, the definition of 「Required Lenders」 in the Co-Lender Agreement, or any other provision in the Loan Documents specifying the number or percentage of Lenders required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder without the consent of each Lender;
(viii)convert or exchange the Loan for any other indebtedness, or cross-default the Loan with any other indebtedness;
(ix)increase or decrease the maximum commitment of any Lenders, subject to the making of Protective Advances in accordance with (and as defined in) the Co-Lender Agreement;
(x)except as expressly permitted in the Loan Documents as of the date hereof or as amended following the date hereof in accordance with the terms hereof, permit any transfer of all or any portion of the Mortgaged Property or transfer of direct or indirect ownership interest in any Borrower, or modify any of the terms and conditions of the Loan Documents concerning any of the foregoing;



(xi)forgive, waive, reduce or extend any fees or other amounts payable to the Lenders, including, without limitation, obligation of the any Borrower to pay interest at the Default Rate and/or late charges without the consent of the affected Lenders;
(xii)any sale of the Mortgaged Property for less than ninety-five percent (95%) of then- current fair market value; and
(xiii)any amendment to the matters that constitute an 「Event of Default」 under the Loan Documents.







EXHIBIT F
List of Required Lender Decisions

(i)consent to (A) the sale, transfer or encumbrance of any portion of the Mortgaged Property (or any interest therein) or any direct or indirect ownership interest in the Borrower, except as otherwise provided in the Loan Agreement, or (B) the incurrence by Borrowers of any additional indebtedness secured by the Mortgaged Property, in each case to the extent such consent is required under the Loan Documents;
(ii)approve any proposed improvements or alterations to the Mortgaged Property that are subject to Agent’s consent under the Loan Agreement and would reasonably be expected to result in an aggregate expenditure for such alteration in excess of the Alteration Threshold;
(iii)bid less than ninety five percent (95%) of the outstanding principal amount of the Loan at a foreclosure sale;
(iv)waive or amend any requirement that the Borrowers maintain an Interest Rate Protection Agreement;
(v)waive the existence of any monetary or material non-monetary Event of Default under the Loan Documents that is known to Agent;
(vi)the making of any Protective Advance if such Protective Advance, together with all other prior Protective Advances which have not been repaid by Borrowers, exceeds specified dollar amounts in the Co-Lender Agreement;
(vii)waive or amend any material requirement relating to the organizational structure or single-purpose entity requirements of Borrowers (including, without limitation, any requirement to have one or more Independent Directors);
(viii)adopt Agent’s recommended course of action (a “Post-Foreclosure Plan”) for any portion of the Mortgaged Property acquired through foreclosure, power of sale, acceptance of a deed-in-lieu of foreclosure or otherwise (“REO Property”) or taking any action that materially deviates from any such approved Post-Foreclosure Plan;
(ix)subject to the Unanimous Decision set forth in clause (xii) of Exhibit E hereto, any sale or financing of the REO Property;
(x)subject to the terms of the Loan Agreement, appointment of any Person to replace the Agent after its resignation or removal as provided herein;



(xi)waive the requirement of Borrowers to fund a Shortfall Deposit that is greater than an amount set forth in the Co-Lender Agreement, or waive any other material reserve requirement;
(xii)commence any Bankruptcy Event against a Borrower Party under the Loan Documents or affirmatively consenting to the adoption or approval of a plan in a bankruptcy or reorganization of a Borrower Party;
(xiii)modification or waiver of any material insurance requirements;
(xiv)to the extent Agent has consent rights over same, consent to the settlement of any insurance claim in excess of $10,000,000;
(xv)rescind any acceleration of the Loan;
(xvi)waive any requirement of Borrowers to deliver operating statements, financial statements or any other material reports to the extent such waiver permits the Borrowers to deliver such operating statement, financial statement or other report more than sixty (60) days later than the date that Borrowers is required to deliver same under the Loan Documents;
(xvii)approve any new Affiliate contracts or any amendment to an existing agreement with any Affiliate that increases the rights (including rights to payment) or decreases the obligations of the counterparty thereto;
(xviii)consent to the settlement of any litigation against Borrowers or the Mortgaged Property to the extent that the amount not covered by insurance exceeds an amount specified in the Loan Agreement, and is not otherwise fully capitalized by Borrowers;
(xix)consent to any dissolution, liquidation or consolidation or merger of any Borrower;
(xx)materially modify or waive any of the provisions or requirements set forth in the Loan Agreement relating to the Guarantor or any Guaranty, including, but not limited to, any provisions or requirements relating to a replacement Guarantor (if any) and financial covenants and financial requirements of such Guarantor;
(xxi)exercising any material rights and remedies against any Borrower Party or the Mortgaged Property (including commencing any foreclosure upon the Mortgaged Property);
(xxii)consenting to any Material Lease requiring Agent’s consent or any renewal, amendment or modification thereof to the extent Agent’s consent is required pursuant to Section 5.10(a) of the Loan Agreement;
(xxiii)any waiver of a condition precedent to an Extension Option, other than a de minimis condition;



(xxiv)permit any subordinate Liens to be placed upon the Collateral or any direct or indirect ownership interest in Borrower (except as expressly permitted to Borrowers in the Loan Documents as of the date hereof), or modify any of the terms and conditions of the Loan Documents concerning any of the foregoing;
(xxv)approve any non-emergency expenses or material actions with respect to the REO Property not contemplated in an approved Post-Foreclosure Plan, other than any Permitted REO Action (as such term shall be defined in the Co-Lender Agreement);
(xxvi)consent to any reclassification or any Borrower seeking any variance or special permit under existing zoning ordinances, to the extent Agent’s consent is required pursuant to the Loan Agreement;
(xxvii) without limiting Agent’s right to make Protective Advances in accordance with the terms hereof, incurring any individual expense which would not be subject to reimbursement by any Borrower Party pursuant to the terms of the Loan Documents in excess of $250,000;
(xxviii) modifying the definition of Event of Default under the Loan Agreement; and
(xxix)consent to the removal or replacement of Manager except as otherwise permitted pursuant to the terms of the Loan Documents, or consenting to any surrender, termination, cancellation, material modification or entry into any management agreement by any Borrower.





SCHEDULE I
Borrower’s Organizational Chart
image_1.jpg










SCHEDULE II
Definition of Special Purpose Bankruptcy Remote Entity
Borrowers hereby represent and warrant to, and covenant with Agent that since the date of its formation or other date indicated below and at all times on and after the date hereof and until such time as the Obligations shall be paid and performed in full:
(a)Each Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, developing, owning, holding, selling, leasing, financing, transferring, exchanging, managing and operating the applicable Mortgaged Property, entering into the applicable Loan Documents and any other loan documents for which any underlying obligations are no longer outstanding, refinancing the applicable Mortgaged Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, (ii) has not owned or leased, as applicable, does not own or lease, as applicable, and will not own or lease, as applicable, any asset or property other than (A) the applicable Mortgaged Property, and (B) incidental personal property necessary for the ownership or operation of the applicable Mortgaged Property.
(b)Each Borrower has not engaged and will not engaged in any business other than the acquisition, development, ownership, holding, sale, lease, financing, transfer, exchange, management and operation of the applicable Mortgaged Property, and each Borrower has and will conduct and operate its business as presently conducted and operated incidental to the foregoing.
(c)Each Borrower has not entered and will not enter into any contract or agreement with any Affiliate of such Person (other than other Borrowers), including the Management Agreements, except (i) in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, and substantially similar to those that would be available on an arms-length basis with third parties other than any such party and (ii) as expressly permitted or contemplated under the Loan Documents.
(d)Except with respect to any prior mortgage loan encumbering the applicable Mortgaged Property and other indebtedness which has been repaid in full on or prior to the Closing Date, each Borrower has not incurred and will not incur any Indebtedness, in each case, other than Permitted Indebtedness.
(e)Each Borrower has not made and will not make any loans or advances to any third party (including any Affiliate (other than other Borrowers) or constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates (other than other Borrowers).



(f)Each Borrower has been, is, and intends to remain solvent and Borrower has paid and intends to pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided in each case, there exists and made available to such Borrower sufficient cash flow from the applicable Mortgaged Property to do so and that the foregoing shall not require any direct or indirect member, partner or shareholder of Borrower to make any capital contributions to Borrower. The foregoing shall not vitiate the obligations of Guarantor under the Guaranty.
(g)Each Borrower has done or caused to be done, and will do, all things necessary to observe material organizational formalities and preserve its existence, and Borrower will not (i) fail to comply with Sections 5(c), 7, 8, 9, 10, 16, 20, 21, 22, 23, 24, 25, 26, 30 or 31 or Schedule A of Borrower’s operating agreement, or (ii) without Agent’s prior written consent, amend, modify or otherwise change Sections 5(c), 7, 8, 9, 10, 16, 20, 21, 22, 23, 24, 25, 26, 30 or 31 or Schedule A of Borrower’s operating agreement.
(h)(1) Each Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (other than other Borrowers) and any other Person; (2) Borrowers’ assets will not be listed as assets on the financial statement of any other Person; it being understood that Borrowers’ assets may be included in a consolidated financial statement of its Affiliates, provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrowers and such Affiliates and to indicate that Borrowers’ assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person (other than other Borrowers), and (ii) such assets shall be listed on Borrowers’ own separate balance sheet; and (3) each Borrower will file its own tax returns (to the extent such Borrower is required to file any tax returns) separate from those of any other Person and will not file a consolidated federal income tax return with any other Person, except to the extent it is treated as a 「disregarded entity」 for tax purposes and is not required to file tax returns under applicable law.
(i)Each Borrower has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower, but excluding other Borrowers), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business solely in its own name, shall not identify itself or any of its Affiliates as a division or department or part of the other and shall, to the extent reasonably necessary for the operation of its business, maintain and utilize separate stationery, invoices and checks bearing its own name.
(j)Each Borrower has maintained and intends to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; provided that the foregoing shall not require any direct or indirect member, partner or shareholder of Borrower to make any capital contributions to Borrower. The foregoing shall not vitiate the obligations of Guarantor under the Guaranty.



(k)(x) Neither any Borrower nor any constituent party of any Borrower has sought or will seek or effect the liquidation, dissolution, winding up, division (whether pursuant to Section 18-217 of the Act or otherwise), consolidation or merger, in whole or in part, of Borrower, and (y) no Borrower has been the product of, the subject of or otherwise involved in, in each case, any limited liability company division (whether as a plan of division pursuant to Section 18-217 of the Act or otherwise).
(l)Each Borrower has held and shall hold all of its assets solely in its own name and has not commingled nor will commingle its assets with those of any other Person (other than other Borrowers).
(m)Each Borrower has maintained and shall maintain a sufficient number of employees, if any, in light of its contemplated business operations and has paid and shall pay the salaries of its own employees, if any, solely from its own funds.
(n)Each Borrower has not held itself out and Borrower will not hold itself out as having agreed to pay indebtedness incurred by any other Person (other than another Borrower). No Borrower has guaranteed and no Borrower will guarantee or become obligated for the debts of any other Person (other than another Borrower). Borrower has not held and Borrower will not hold itself out as being responsible for the debts or obligations of any other Person (other than other Borrowers).
(o)Each Borrower has allocated, and each Borrower shall allocate fairly and reasonably shared expenses with Affiliates (including, without limitation, shared office space).
(p)Each Borrower has not maintained, and each Borrower shall not maintain its assets in such a manner that will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person (other than other Borrowers).




SCHEDULE III
INTENTIONALLY LEFT BLANK





SCHEDULE IV
APPROVED ANNUAL BUDGET
image_2.jpg




image_3.jpg






SCHEDULE V
RATABLE SHARES
Lender: Deutsche Bank AG, New York Branch
Ratable Share: 100%



SCHEDULE VI
RENT ROLL




SCHEDULE VII
APPROVED PHASE ZERO RENOVATION BUDGET

image_4.jpg




49289660


SCHEDULE VIII
APPROVED PHASE ZERO RENOVATION SCHEDULE




49289660

image_5.jpg


SCHEDULE IX
PHASE ZERO PLANS AND SPECIFICATIONS


49289660

image_6.jpg


49289660


SCHEDULE X
PIP BUDGET

image_7.jpg


49289660

SCHEDULE XI
PIP PLANS AND SPECIFICATIONS

RENOVATION REQUIREMENTS

All Scope of Work shall be completed by December 31, 2026 (subject to extensions due to Extraordinary Events as set forth in Section 9.03 of the Management Agreement provided the sum of all extensions must not exceed six months). Phase 1 Scope of Work to be completed by December 31, 2025 (subject to extensions due to Extraordinary Events as set forth in Section 9.03 of the Management Agreement provided the sum of all extensions must not exceed six months).  Owner is scheduled to complete a full soft and casegood renovation of the guestrooms by December 31, 2024. Completion of the guestrooms per the Design Standards is considered a requirement of the Renovation Plan. All work is to meet the April 2024 Sheraton Design Standards and periodically updated supplements and guidelines. It is the responsibility of the Owner and Owner’s design team to ensure understanding and compliance with all Marriott International standards and requirements. All work is to be provided for review and approval prior to commencement of work. Prior to commencing any work, please contact Marriott Global Design (Dave.Morton@marriott.com) to set up a kick-off meeting. This meeting will be used to discuss this document’s requirements, the design and submittal process as well as a proposed construction schedule. Numbering of HOTEL RENOVATION sections below corresponds to Sheraton Design Standards Module numbers and may not be sequential.   
  
PHASE 1:

GR.0  GENERAL REQUIREMENTS    
GR.1  PROJECT ADMINISTRATION
Working with a Sheraton recommended Interior Designer, provide design solutions including, but not limited to, a comprehensive Design Concept Narrative, new space planning, updated finishes and FF&E, and accessories, art & styling that reinforce the Sheraton Design Standards in all areas of the hotel.
Provide the current Sheraton brand transformational programs and featured design elements as outlined within the HOTEL RENOVATION and Sheraton Design Strategy guidelines.

GR.2 SIGNAGE   
.1Provide new exterior signage to comply with the current Sheraton Hotels Signage Standards.

  
1.0SITE / BUILDING EXTERIOR
a.BUILDING EXTERIOR / PORTE COCHERE
Complete a general repair and touch-up including but not limited to; paint, windows, doors & frames and items that are showing wear and tear.
Provide new revolving door and side doors/frames at Porte Cochere. Provide all necessary sweeps, seals, thresholds and door hardware.
Repair the following items: damaged areas of the building exterior, exterior guest facing railings and damaged hardscape elements.
Thoroughly clean the following items: façade of pool area, Porte Cochere glass canopy’s/overhang’s, all glazing and hardscape elements.
Provide architectural and/or decorative lighting, on a dimming system that allows space to transition from day to night, at Porte Cochere.

49289660

Provide a valet/bellman stand that compliments the overall aesthetic of the Porte Cochere.
b.LANDSCAPE, PAVING & HARDSCAPE / PARKING AREAS
Replace plants at existing large-scale pots at exterior terrace.
PUBLIC SPACES
c.LOBBY
Provide Sheraton Public Space elements that promote open/global gathering places that encourage connectivity and interaction enabling a communal environment that allows guests to Work, Meet & Relax. Develop new space plan that incorporates Sheraton design elements of Community Table(s), Booth(s), Studio(s) and &More by Sheraton bar service. New space plan to incorporate existing street level restaurant space.
Provide a Full Renovation including but not limited to; floor, wall and ceiling finishes, Casegoods and Softgoods, architectural and decorative light fixtures, refinish all millwork and repaint all painted surfaces. Softgoods (carpet) replaced at 2018 FF&E refresh is excluded, provide documentation and refresh/refinish to like new condition.
Replace the following items: free-standing reception pods, custom feature behind pods, 2x2 and/or 2x4 fluorescent lighting with LED lighting.
Provide additional power outlets and USB ports throughout the space.
Provide a zoned, pre-set dimming lighting system for architectural and decorative lighting.
Provide a new all-in-one computer for guest use and provide printer in the same area. With inclusion of this element any business center can be repurposed.
Re-plan Business Center via new space plan.
d.PUBLIC RESTROOMS
Provide a Full Renovation including but not limited to; floor, wall and ceiling, finishes, complete vanity, accessories, partitions, decorative light fixtures, FF&E, refinish all millwork and repaint all painted surfaces. The following items are excluded and may remain; urinals, water closets and entry doors.
Complete a general repair and touch-up including but not limited to; entry doors and frames.
FOOD & BEVERAGE
e.BAR / RESTAURANT (1st Floor)
Re-concept the Bar to coordinate with Public Space Full Renovation and new space plan to implement Sheraton Public Space element &More by Sheraton.
Provide a Full Renovation including but not limited to; floor, wall and ceiling finishes, Casegoods and Softgoods, architectural and decorative light fixtures, refinish all millwork and repaint all painted surfaces. Full Renovation to include a new finishing kitchen space at 1st floor to support food service delivery.
Provide a Softgoods Renovation including but not limited to; upholstered seating, accessories and decorative lighting at exterior terrace.
Assess current F&B operations and implement Sheraton F&B direction and offerings.
Provide a zoned, pre-set dimming lighting system for architectural and decorative lighting.
f.RESTAURANT (2nd Floor)
Provide a Casegoods & Softgoods Renovation including casegoods, carpet, vinyl wallcovering, window treatments (if applicable), upholstery, seating, art, accessories, decorative lighting, refinish/painting millwork, and paint.

49289660


PHASE 2:

GR.2 SIGNAGE   
Provide new interior signage to comply with the current Sheraton Hotels Signage Standards.
Provide new digital signage at Meeting Room entry points.
Repair the following items: electronic reader boards in public areas.

2.0FUNCTION SPACES
g.STANDARD ITEMS FOR ALL MEETING SPACES
Provide a Casegoods & Softgoods Renovation including but not limited to casegoods, carpet, vinyl wallcovering, operable partition fabric, window treatments, upholstery, art, accessories, decorative light fixtures, refinish all millwork and repaint all painted surfaces.
Complete a general repair and touch-up including but not limited to; millwork and doors/frames showing wear and tear. Where chair rails or wainscoting exist, remove and repair surface.
Replace the following items: 2x2 and/or 2x4 fluorescent egg-crate lights with LED and banquet chairs.
Provide a pre-set dimming lighting system for architectural and decorative lighting.
h.PRE-FUNCTION
In additional to Casegoods & Softgoods Renovation items above; provide space planning to implement Sheraton Public Elements of Community Table(s), Booth(s), Studio(s) where space allows.
Provide additional power outlets and USB ports throughout the space.
i.MEETING ROOMS / BALLROOM / BOARDROOM
Remove the following items; all traditional architectural moldings.
Refurbish operable partitions to like new condition.
Replace the following items; 2x2 ACT with upgraded (tegular/narrow grid) ACT at Meeting Rooms, smooth gypsum board ceiling at Boardroom and new glass door/hardware at Boardroom.
Reduce percentage of ACT to 40% maximum in Ballroom. Replace with gypsum board ceiling above decorative chandeliers.
In additional to Casegoods & Softgoods Renovation items above; provide new table with power and connectivity to existing wall mounted TV at Boardroom.





49289660